119 N.E. 79 | NY | 1918
If there be evidence in this case creating a question of fact for the jury, the Appellate Division was in error in dismissing the complaint. In our opinion, there is such a question of fact.
The plaintiff was in the defendant's employ as the driver of one of its wagons and was injured on the evening of February 25, 1913, on the delivery platform at Lexington avenue and Forty-ninth street, Manhattan, New York. This platform was used by the defendant for receiving and sorting freight. It was inclosed and ran from Forty-ninth to Fiftieth street, one hundred feet or more, being part of the new Grand Central Terminal. The structure was of concrete and iron, supported by iron pillars which ran through the concrete platform. The various pieces of freight were placed on this platform by the drivers and helpers of the express company and by outside truckmen and shippers. This freight was being constantly moved about from one place to another, sorted and put on trucks, and taken by the elevators to the train level for shipment.
After the plaintiff had finished unloading his wagon and was going to register his time at the time booth, he was injured by a heavy iron casting falling over upon him. This casting was about three feet six inches high, six inches thick, a foot and a half wide, and weighed about six hundred pounds. It had been left leaning almost perpendicular or upright against one of the iron pillars of the platform and not more than three feet from where the plaintiff had unloaded his wagon. Taking the evidence most favorable to the plaintiff, as we must do (Eastland v.Clarke,
No negligence can be predicated upon the placing of this casting for no one knows who placed it in this position, and no liability arises from the happening itself. The *52 negligence, if any, rests in the knowledge of the foreman that this heavy iron was so placed as to be dangerous and liable to topple over, and his failure to remedy the condition.
Foremen were in charge of this platform. John Hart and Dan Hart were such foremen on the evening in question and had charge of the south end and middle of the platform. These foremen directed the drivers where to place their freight and instructed other employees on the platform how to dispose of it after it was unloaded. Louis Neal, a driver, testified that he had noticed this iron standing alongside of the pillar as he was unloading his wagon at the platform a half hour before the accident. Pointing to a man in the court room, who was Dan Hart, he said: "I spoke to the foreman there when I was backing in with my van that it was dangerous."
This action was brought under the Employers' Liability Act which makes the defendant liable for the negligence of the foreman.
In brief, we have this evidence: The defendant maintained a large platform to which its drivers brought freight for shipment. Foremen in charge of the platform gave instructions where and how to place it, and when and how to remove it. Employees, under the control of these foremen, were moving about constantly on this platform. An iron casting, weighing about six hundred pounds, was placed upright alongside a column so far off the angle as to indicate the possibility and likelihood of its falling over. The foreman's attention was called to the danger. He paid no attention and did nothing. One-half hour thereafter, without intervening cause, the iron toppled over on an employee going about his usual work.
Can it be said as matter of law that this foreman exercised the reasonable care which the circumstances called for? The Appellate Division has answered in the *53
affirmative. We think, however, that these facts presented a question for the jury to pass upon, the question being whether under such circumstances the foreman exercised the care and supervision which a reasonably prudent man charged with similar duties would have used. "If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do under the circumstances proven, this, involving as it generally must, more or less conjecture, can only be settled by a jury." (Eastland v. Clarke,
That a reasonably careful foreman, considering the use of this platform by so many workmen and the lifting and moving of so many packages, would have heeded the notice given by Neal and have removed the iron or pulled it out further at the base and thus prevented an accident, would not be an unwarranted or unreasonable conclusion. The evidence at least submits to this inference, and where the circumstances are such that men of ordinary prudence and discretion might differ *54
as to the character of the acts, the question of negligence is generally for the jury. (Rounds v. D., L. W.R.R. Co.,
In the opinion below it was said: "If it be assumed that the attention of the foreman was, prior to the accident, called to the dangerous position of the casting, this does not aid the plaintiff, because the foreman considered it safe, and at most it was an error of judgment upon his part, for which the defendant is not responsible." The phrase "error of judgment," appearing in some of the cases, has been used, as the facts will show, to indicate that there was no negligence in failing to do what reasonably prudent men would have done under similar circumstances. The judgment, however, of a superintendent or foreman cannot be substituted for the rule of the reasonably prudent man by which all acts in negligence law are measured. As stated by Judge POUND, in Mertz v. Connecticut Co. (
So, in this case, it is not a sufficient answer to say that the foreman looked at the casting and thought it safe, if, to the reasonably prudent man, it would have appeared dangerous. *55
There must be no confusion between the use of the words "error of judgment" in certain cases to indicate that there was no failure of reasonable care, and the "error of judgment" which excuses what might otherwise be a negligent act. Where an employee is confronted with a sudden emergency, the failure on his part to exercise the best judgment does not render the master liable. (Lewis v. L.I.R.R. Co.,
This case at bar does not come within the rule established inLoftus v. Union Ferry Co. of Brooklyn (
Neither is the rule enforced in Citrone v. O'RourkeEngineering Construction Co. (
Feeling, as we do, that the evidence in this case presented a question of fact as to the foreman's negligence which should have been submitted to the jury, we are obliged to reverse the judgment of the Appellate Division, but cannot reinstate the verdict as requested. The order of the Appellate Division not only dismisses the complaint but reverses the finding of fact based upon the defendant's negligence. Within the practice laid down in Meisle v. N.Y.C. H.R.R.R. Co. (
The judgment of the Appellate Division should be reversed and new trial granted, costs to abide the event.
HISCOCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, POUND and ANDREWS, JJ., concur.
Judgment reversed, etc.