85 N.Y.S. 819 | N.Y. App. Div. | 1903
The action is for negligence, aiid this appeal is from judgmént entered upon a dismissal of the complaint at the Trial Term, and from an order denying a motion for a new trial.
I am of opinion that the case falls within the rule that negligence is not imputable to an accident not “ the reasonable, natural and probable result ” under the circumstances, “ which ought to have been foreseen by the defendant in the exercise of ” due prudence. (Ayers v. Rochester Railway Co., 156 N. Y. 104 ; Dougan v. Champlain Transportation Co., 56 id. 1; Loftus v: Union Ferry Co. of Brooklyn, 84 id. 455 ; Hubbell v. City of Yonkers, 104 id. 434; McGrell v. Buffalo Office Building Co., 153 id. 265; 1 Thomp. Neg. [2d ed.] § 28 et seq.; Beven Neg. 105.) The last-named author well states the rule as given by Pollock, C. B., in Greenland v. Chaplin (5 Ex. 243): “ That a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur.” In Glasier v. Town of Hebron (131 N. Y. 447) Peckham, J., tersely states the principle : " It was not an accident of a character which was likely to happen, and there was no negligence in failing to guard against a very Unlikely possibility.” Of course, it is not essential to liability that the contemplation or anticipation should be of the particular consequences, but, nevertheless,- the accident must be of such a nature as “ might reasonably be apprehended ” from the failure to take the precaution in question. (Lilly v. N. Y. C. & H. R. R. R. Co., 107 N. Y. 566, 575.)
The plaintiff was a traveler on the streets of the city of New York. The defendant was delivering coal from its wagon standing in the street,’to a customer living in an abutting house, The box of the wagon had been raised from its wheels by hoisting'gear. The unloading of, the coal disturbed the equilibrium of the box so
I think that Marean, J., made a proper disposition of the case, and that the judgment and order should be affirmed, with costs.
Goodrich, P. J., Bartlett and Woodward, JJ., concurred; Hooker, J., dissented.
Judgment and order affirmed, -with costs.