46 N.Y.S. 407 | N.Y. App. Div. | 1897
The plaintiff’s intestate, Patrick Eeed, was killed on October 1, 1895, by the fall of a derrick which was being used by the firm of Post & McCord' in the erection of the ironwork of an eigliteenstofy building, at the corner of Broad street and Exchange place, New York city. Post died after the commencement of the action, which was thereafter continued against the defendant McCord alone. Eeed was in the employment of other persons who were contractors for the erection of the stone work of the structure, and in doing his work was stationed on a temporary bridge or platform over the sidewalk on Broad street, on a level with the second floor. A derrick on a floor several stories above was used by the defendant’s firm in lifting heavy loads of iron, under their contract with the owner. It consisted of a mast and boom. There was an engine on the ground floor having a' drum or spool around the cylinder of which the hoisting rope ran. The spool had a ratchet into which a “ dog ” fitted- and engaged the ratchet so as to prevent the head from revolving in the opposite direction. This dog was fastened to a boss and was held in position by a steel pin passing through the dog and into the boss, the object being to catch the load instantly at any time when it became necessary.
There was evidence tending to show that, on this occasion, the load, consisting of two heavy iron beams or columns, weighing 3,000 pounds, had been lifted and had passed within the building line for a minute or two, so as to have disappeared entirely from the view of the stonecuttersthat Eeed watched the load until it thus went out of sight when he resumed work on the platform below; that the rope suddenly commenced to run out rapidly through the pulleys; the boom of the derrick with its load began to descend until it struck the front of the building, when it broke into two pieces,
When the rope began to ¡flay out, the spoolman, finding something out of order so that the clutch would not catch and check the revolution of the spool, tried to put the clutch in gear, but finding that it would not work, kicked the dog suddenly into position; ’ this sudden shock-caused a strain which, broke the dog, and the ■ spool being thus unchecked reversed rapidly, causing the boom to fall, as before stated. There was no other evidence of negligence except an admission of the defendant McCord, made in his examination at the coroner’s inquest, to which reference will be made hereafter. I
The defendant offered evidence to show that the hoisting engine was of a standard pattern, purchased of reliable dealers, and contended that the plaintiff cannot recover without proving that it broke because of some defect which the defendant should have discovered or remedied, or that it broke because of its negligent use and operation.
There is no allegation in the complaint that the machine was not good and sufficient; the allegation is that the death of Reed was “ occasioned solely by the negligence and carelessness of the defend-) ants and their agents, servants or’employees in charge and control of the same.” So that the issue relates solely to the negligent operation of the machine by the defendant or his workmen.
The plaintiff contends that the breaking, of the boom and the falling of the load into a public street alone constituted prima facie evidence of defendant’s negligence, and that the doctrine of res ipsa loquitur must be applied, citing, among other cases, Hogan v. The Manhattan R. Co. (149 N. Y. 23), where it wTas held that it is a well-settled rule that if a person erects a building or other structure upon a public street he is under legal obligation to take reasonable care that nothing shall fall into the street to the injury of persons lawfully there; and that as such structures do not ordinarily fall upon the wayfarer, if anything does fall or injure a person lawfully there, the accident is prima facie evidence of negligence, or in other words, the presumption of negligence arises.
Assuming, therefore, that res ipsa loquitur, the. court properly denied the motions to dismiss the complaint and direct a verdict for
The charge of the learned court was not excepted to by either party, although it stated that the mere breaking of the boom or the falling of the metal and the killing of Reed was not sufficient to . justify the jury in assuming that the defendant did not do what the law required him to do, and that the plaintiff must prove that the falling of the derrick was caused by some negligence on the part of the defendant or his agents. ’
The defendant produced the evidence of the spoolman, who tes-* tified as to the cause of the accident. The question, therefore, recurs, whether there was any evidence of negligence in the operation of the machine by the spoolman. His own testimony shows that it was his duty to attend at the spool; that if he had looked he could have seen whether or not the dog was acting ánd clutching the ratchet as it ought to have done; that he started the spool without knowing whether or not the clutch was propérly operating that after it started he found it was not workingthat he tried iri this emergency to kick the dog into place, but failed to do so, and the spool revolved so rapidly that when he succeeded in putting the clutch partly into position, but not fully, the sudden strain broke the dog. The negligence, and the only negligence, to be predicated on this state of facts was. the failure of the spoolman to see that the clutch was in place before he permitted the reverse, and I think that this Was sufficient evidence of negligence in this respect to justify the court in submitting the facts to the jury.
One other exception requires consideration. At' the coroner’s inquest the defendant McCord, who was not present at the accident, testified that “ for some reason or other that dog was not in position and that caused the accident. The man who had charge of it supposed the dog was in position and. he released his hold on the thing and it commenced to revolve and then he got down so as to put his foot on it and it was going so rapid that it slipped past.”. This evidence was admitted at the trial under exception.
It is not necessary that admissions of a party to an action, in order to be evidence, should be of facts within the knowledge of the
. “ This rule does not, however, embrace the admissions of a party to the action; for, upon equally plain principles, anything which a man j says against himself may be given in evidence by his adversary, as ' it is not to be supposed that one will make a statement adverse tó : his own interest unless it is true.” Tried by this rule, the admission of the defendant was a “ statement adverse to his own interest,” and it was made under the solemnity of an oath in a legal proceeding instituted for the purpose of determining upon whom rested the responsibility of the accident, where it may reasonably be assumed that the defendant would he careful of admissions which would he injurious to his interests and possibly form the basis of an action against him for recovery of the damages occasioned by the accident. He did not testify that he had heard any one say what he stated as a fact. Indeed, the question which elicited the remark was, “All machines of that kind are like that?” The witness answered this by saying, “ That one maker,” which was a full answer to the question; but in addition he volunteered the admission or statement which is cited above, as to the cause of. the accident. The fact that it was not an answer to the question would seem to add force to the conclusion.that the evidence was admissible as an admission of the defendant.
It is not necessary that the admissions should be within the personal knowledge of the party making them. They may be derived from information furnished him by others and still be admissible as evidence against him. Commissioner Earl in Cook v. Barr (44 N. Y. 156, 158) said: “ When a party to a civil action has made admissions of facts material to the issue in' the action, it is always competent for the adverse party to give them in evidence ; and it
In Chapman v. The C. & N. R. et al. (26 Wis. 295) and in Shaddock v. The Town of Clifton (22 id. 114) it was held that the admissions by one of the defendants ■ of facts not within his - personal knowledge, made upon the hypothesis that information given him by the plaintiff was true, are admissible in evidence against him,- in connection with proof of -the truth of such information. These cases are cited with approval in Abbott’s .Trial Brief on the Facts (§ 77). In the present case there was other evidence tending .to show that the admission was true.
A clear distinction exists between an admission Which, by its wording, is stated to be mere hearsay evidence, and matter which by the wording of the sentence does not appear to be hearsay. (1 Greenl. on Ev. § 202.) This distinction was referred to in the Wisconsin cases already cited. An examination of the grammatical construction of the admission in question shows that it was complete in itself, and was not stated by the witness to be hearsay evidence Or a' statement made to him by any- person or a repetition of any such remark, but was an absolutely unqualified admission of .the facts therein stated. The source or reason of' the statement by the witness did not appear, and this rendered the admission of the evidence proper, within the reasoning of the authorities already cited.
The defendant, moreover, was present at the trial, and, although the court,' when admitting the evidence,, intimated that he could explain this statement made at the inquest, he did not see fit to become a witness in order to explain it. It may be assUmed that at the time of the inquest he acted as an employer usually would act, and had made some examination of and inquiry into the facts, had talked .with his employees in charge of the spool and machinery, and had also examined these articles, and that this admission against his interest was not without some foundation of information.
The judgment and order must be affirmed.- .
AH concurred.
Judgment and order unanimously affirmed, with'costs.
