119 Misc. 447 | City of New York Municipal Court | 1922
These are companion actions which were tried together, being founded on the same alleged negligent conduct of the defendant in the operation of a sandblasting machine, the sole difference being the amount of damages claimed in such case. The plaintiffs are dentists, and at the times in question occupied a seven-room dental suite, situated on the fifth floor of No. 358 Fifth avenue, borough of Manhattan. This dental suite consisted of seven rooms, with two windows fronting on West Thirty-fourth street, near Fifth avenue. The seven rooms were composed in part of two operating rooms, each with one of the windows, one room being used by each plaintiff, two rooms occupied by each plaintiff separately as a laboratory room, a common reception
There are only two questions in the case: First, whether the negligence of the defendant has been established, and, second, whether the proper measure of damages has been proven. I think both questions should be answered in the affirmative.
The basis of the actions is negligence. The negligent conduct of the defendant must accordingly be established. There is no doubt that the sand which was found in the plaintiffs’ offices came from the sandblasting machine of the defendant. The plaintiff Wilen testified that he saw the sand coming out of the scaffold and going in the direction of his building. The sand could come from nowhere else but from the machine of the defendant. The plaintiff Wilen testified that there was a space of about a foot between the canvas on the sides of the scaffold and the wall of the building and that the sand came from this opening. This fact would explain how the sand got into the plaintiffs’ offices. True, the defendant’s witness Burgner, who was the operator or nozzle-man on the job, testified that there was no opening and that the side flaps of the canvas were nailed in between the joists of the building whenever the work was going on. The plaintiffs’ explanation is, however, more probable.
Apart from the proof of negligence the rule of res ipsa loquitur would seem to be applicable. As pointed out in the recent case of Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285, the neutral circumstances of control and management called upon the defendant for an explanation. There has not been a satisfactory explanation by the defendant of how the sand got into the plaintiffs’ premises. I am convinced that the sand did come into the plaintiffs’ premises, perhaps not to the extent narrated by their witnesses, but at least to an extent causing damage to their business and property. It
The plaintiffs fall within the class of those whose livelihood depends upon the earning capacity of their brain and muscle. The amount of capital invested in their business is necessarily small and is only an incident to their business. Kronold v. City of N. Y., 186 N. Y. 40, 44; Gombert v. N. Y. C. & H. R. R. R. Co., 195 id. 273, 279; Walsh v. N. Y. C. & H. R. R. R. Co., 204 id. 58; Spreen v. Erie R. R. Co., 219 id. 533. In the Kronold case the court referred to the case of Nash v. Sharpe, 19 Hun, 365, where the plaintiff was a dentist and was allowed to prove a loss of personal earnings occasioned by the negligence of the defendant. It is true that in the cases just cited the plaintiffs lost their earning power by reason of injuries to their person. I can see no difference in principle, however, between such a case and one where, as here, the plaintiffs were deprived of earning power through an interruption to their business. In one case the subjective is involved and in the other the objective. In neither case are the profits of a business dependent upon invested capital drawn into discussion. There is no force in the argument of the defendant that because the business of the plaintiffs was solely by appointment and because, as the proof may show, they were able to keep these appointments
Judgment is, therefore, directed to be entered in favor of the plaintiffs for each of said amounts.
Judgments accordingly.