Meeker v. Smith, 84 A.D. 111

Meeker v. Smith

84 A.D. 111 | N.Y. App. Div. | 1903

Smith, J,:

The defendant Jones is sought to be charged as'a partner with the ■defendants Smith and Carroll. Without reciting the- evidence in •detail We are of opinion that there was sufficient proof of his interest in this enterprise to establish against him a prima facie case of part*113nership ; at least sufficient in the absence of explicit evidence upon his part as to the nature of his contract with the other defendants.

' One of the defendants’ contentions was that this accident was not caused by the negligent erection of this jack, but by the willful act of some stranger in cutting the rope at the back of the grand stand, without which willful act, it is claimed, the jack would have remained in position and no accident would have occurred. After the charge of the trial judge the following request was made by the defendants’ counsel: “ I ask the court to charge that if the rope that held the jack in position was cut by some one not employed by any one in control of the defendants, or by their knowledge, and the jack fell from the rope being so cut, the defendants are not liable.” This request was refused by the court except as already charged, to which .refusal defendants duly excepted. ITpon this appeal this ruling is strongly urged as error for which a new trial should be granted. To the defendants’ contention the respondent makes two answers: First, that this act constituted a nuisance, and that the defendants were not entitled to the ruling asked for. But the case was not submitted to the jury upon this theory. They were not allowed to say whether this construction constituted a nuisance, and it could not have been held a nuisance as a matter of law. If properly constructed and stayed it offered no menace to the safety of those near it. It was a-considerable distance back from the front of the grand stand, and it must fall and slide before it could leave the roof of the grand stand and injure the bystanders. Its erection, therefore, cannot be held, as matter of law, to have been so dangerous as to be a wrongful act. While the defendants were bound to exercise reasonable care to protect their invitees from peril, they were not insurers of their safety, and if the accident occurred through the willful act of a third party, the defendants could not be held liable therefor. We think, therefore, that the request to charge should have been granted, and was improperly refused, unless the rule as requested had been previously charged.

The second answer of the respondent is that this proposition had already been substantially charged, and this was probably what was in the mind of the trial judge when he refused to charge except as already charged. But had the rule of law as requested to be *114charged, and to which the defendants were entitled, been, given to the jury? An examination of the charge shows that the learned, trial judge stated to the jury what was the claim of the plaintiff and the claim of the defendants, and told the jury that it was for them to determine the cause of the accident. He had not charged; specifically that if the defendants’ theory were true the defendants were entitled to a verdict. He had, it is true, inferentially sochargéd. With the ordinary jury, however, more or less confused by arguments of able counsel, it is difficult to make clear -by most explicit language the exact rule of law by which they should be guided.. It is not fair to a suitor that those rules of law be only inferentially given. He is entitled, at ..least- upon his request,; to an explicit statement of his rights. The refusal of a. request to charge except as already charged is an intimation to the jury that the rule of law requested is hot wholly sound. . If that rule of law has been already charged, the party making the request makes it at his peril. Where, however, the rule of law requested to he charged has been only inferentially stated, the party is, we think, entitled to an explicit statement thereof, and should not incur any. peril by asking therefor..

We think, therefore, the defendants have successfully established prejudicial error, for which a new trial should he granted..

All concurred; Chase, J., in result.

Judgment and order reversed and new trial' granted, with one bill of costs to appellants to abide event.