12 Misc. 449 | New York Court of Common Pleas | 1895
WTien the case was last before this court, it was, among other things, held that the allegation and proof of the bare ownership was not sufficient to charge the owner of premises, which were occupied by others, with responsibility for injuries occasioned by a nuisance upon such premises (Schmidt v. Cook, 4 Misc. Rep. 85, 23 N. Y. Supp. 799); and, although the complaint was held to be bad in substance, a new trial was granted, in view of the possible allowance of an amendment. Upon the trial which is now the subject of review, the complaint was amended by inserting the words “and landlords in control”; so that the third paragraph of the complaint reads
Plaintiff’s version of the accident is that she and her companions had been at play in the yard the entire day; that in the afternoon she played piano on the said stone; that she said to her playmates that she was going to play the supper march for them, that they could hurry up and get ready; that she was drumming on the stone as if playing on a piano, turned around, and called Mamie and Corneille. “I turned around like that [illustrating], and with that the stone fell on my foot.” And she further testified, in answer to the following questions:
“Q. What part of the stone fell on your foot, the front or the side of it? A. The upper part I was playing on. Q. Where you had your fingers, on top, came over towards you? A. Yes. Q. And that part where you were drumming with your fingers upon, playing the piano, fell on your foot? A. Yes. Q. Now, did you pull that' stone over on yourself? A. No. Q. How did you get your foot out from under that stone, if you remember? A. Mamie Lang and Corneille pulled,—helped to pull it up.”
She further testified that the stone first struck her left leg, and she was trying to hold it up, and it slipped from her hand, and went on her right foot; that she was not looking at the stone at the time she turned around; that she never played on that stone before; that they played around the yard a great deal; once in a while “puss
When the plaintiff rested, the defendants moved to dismiss the complaint, upon the grounds hereafter stated, which motion was denied, and they duly excepted. The defendants did not call any witness, and, having rested their case upon the plaintiff’s evidence, they renewed the motion to dismiss, which was likewise denied, and the defendants again noted an exception. The defendants have not on the present appeal raised any question as to the sufficiency of the allegations of the complaint, and the evidence respecting their possession and control of the premises during the time plaintiff’s father occupied the same as a tenant of the defendants, and the only grounds urged by them for a reversal of the judgment are:
“First. There is neither an allegation in the complaint nor evidence showing that the defendants were responsible for the injury. Second. The evidence fails to show absence of contributory negligence on the part of plaintiff, and, on the contrary, shows that the injury was caused by her own negligent act.”
It is urged in support of the first point that there was nothing in the appearance or position of the stone to indicate that it was dangerous ; and attention is called to the testimony of witnesses, including that of plaintiff and her parents, upon this point, all of whom testified that they did not notice anything dangerous about the stone. But the defendants were bound to know that a stone of the dimensions before stated would naturally tempt children to play upon and about the same, and, by reason thereof, become dangerous to life and limb; and hence the defendants owed to the plaintiff and other children who played in the yard a duty of precaution against harm. Schmidt v. Cook, supra; Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442; Earl v. Crouch (Sup.) 10 N. Y. Supp. 882, 16 N. Y. Supp. 770; Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29.
The defendants further contend that there is no evidence that they placed or caused to be placed the stone in the position it was in on the day of the accident, nor that they had actual or constructive notice of its condition or position, and that, consequently, they are not liable. Even if the defendants did not place or cause to be placed the stone in the position it was in on the day when the accident occurred, or if they were ignorant of the existence of the stone, yet if, by the exercise of reasonable care and diligence, they would have known of its existence, the opportunity of knowledge stands, for the purposes of the case, as actual knowledge, and the defendants are chargeable as if they had created the nuisance themselves. Kunz v. City of Troy, supra; Timlin v. Oil Co., 126 N. Y. 514, 27 N. E. 786.
It appears from the undisputed evidence, and the jury by their verdict have found, that the stone was allowed to remain in the same position a sufficient length of time without any endeavor on
“Though the toying of the plaintiff with the rock was the occasion of its fall, contributory negligence is not a necessary inference, but may be negatived by a contrary inference that the plaintiff was in the exercise of due care. Being eleven years old, and not of infirm or inferior faculties, she was sui juris, and responsible for the observance of care; not, however, the care of an adult, but only for a degree of care proper to her age and condition. * * * It is not the contributory act merely, but the contributory negligence of a plaintiff, that defeats his recovery.”
As the evidence adduced upon this point was substantially the same at the trial under review as upon the former trial, the foregoing rules should guide us in the disposition of the question under consideration.
Applying these principles to the present case, it is apparent that the jury were warranted in finding by their verdict that the plaintiff was free from negligence. The plaintiff was lawfully in the back yard, reserved by the defendants for the common use of the tenants and their children. She was encouraged to play therein by the representations of defendants’ agent, made at the time of the letting, that it was “a nice yard for children to play in.” In toying with the stone the plaintiff indulged the natural instincts of a child in amusing herself by playing piano on it, and, as she did not pull the stone over herself, it is a reasonable deduction from the evidence that, by reason of her age and condition, she did not appreciate the dangers by which she was surrounded. The learned trial justice properly left it to the jury to determine whether the plaintiff acted with that degree of prudence which might reasonably be expected, under the circumstances, of a child of her years and condition (Schmidt v. Cook, supra; Earl v. Crouch, supra; Stone v. Railroad Co., 115 N. Y. 104, 21 N. E. 712; Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. 378); and we see no reason for disturbing their determination of the facts in relation to this branch of this case.
The record discloses that other exceptions were taken by the defendants at the trial, but they have not been relied upon on this appeal. At all events, we are satisfied, after a careful examination, that the rulings of the trial justice were in all respects correct. The judgment should therefore be affirmed, with costs. All concur.