189 A.D. 228 | N.Y. App. Div. | 1919
Plaintiffs herein have, recovered judgment against the defendant in the sum of $2,337.53, based upon the verdict of a jury in plaintiffs’ favor and against the defendant in an action brought to recover damages for the death of plaintiffs’ intestate, which it is alleged occurred by reason of the negligence of the defendant.
The complaint was framed so as to enable the plaintiffs to prosecute their action both upon the theory of a nuisance created by the defendant, and also upon the theory that the death of plaintiffs’ intestate was caused by the defendant’s negligence. At the close of the evidence counsel for the plaintiffs elected to go to the jury on the question of negligence only.
In their complaint, plaintiffs allege that the boy came to his death as the result of negligence on defendant’s part in failing to construct and maintain a safe structure, in failing to guard the cement work with appliances and safeguards, and allowing the gateway through the fence from the park to remain open, unprotected and unguarded. The plaintiffs, respondents, now seek to sustain their recovery upon the theory that the defendant was negligent in failing properly to guard the foot of East One Hundred and Fourteenth street by a proper fence or guard to prevent the intestate walking or falling off the construction work and into the river.
Upon the proofs adduced upon the trial, I think the plaintiffs failed to establish any negligence on defendant’s part.
The respondents further claim that the defendant was negligent in failing to erect some fence or guard across the street to prevent children going upon the concrete work which he had erected. As well might one who was employed to construct a wharf or dock at the foot of any street of the city be called upon to fence off the dock after his work was completed. No possible duty rested upon the defendant thus to guard against children or pedestrians or vehicles coming down the street and going into the river. So far as the evidence shows, East One Hundred and Fourteenth street, at the point in question, was, at the time, open for use of the public in reaching the East river as much as any other thoroughfare of the city, and merely because the defendant, in constructing the sewer, built a structure some eight feet above the water at low-water mark does not render him liable for accidents befalling children or others who might walk out upon the sewer and fall therefrom. No duty rested upon him to guard against such accident by the erection of fences, barriers or otherwise.
The appellant also assigns reversible error to the failure of the jury to heed the court’s instructions as to the law applicable to the case. At the close of the court’s main charge to the jury, counsel for the defendant requested the court to charge the jury in the following language: “ I ask Your Honor to charge the jury that if the plaintiff had a right to be on the
Defendant’s counsel further asked the court, as follows: “ I ask Your Honor to charge that if the plaintiff had no right to be on the sewer at all, he was a trespasser, and he cannot recover.” The court likewise acceded to this request of defendant’s counsel.
Under the first of said requests the court, in effect, charged the jury that if the plaintiff’s intestate was rightfully on the sewer the defendant would not be liable for failure, either to put him off it or keep him off it, which, in effect, was tantamount to instructing the jury that there could be no recovery by reason of defendant’s failure to keep plaintiffs’ intestate from going into the place of danger, and of itself would seem to absolve defendant from any duty to guard.
By the second charge above mentioned, the court charged the jury that there could be no recovery if plaintiffs’ intestate had no right to go upon the sewer.
Thus, under the charge of the court, in either event, whether the plaintiffs’ intestate was rightfully or wrongfully upon the sewer, there could be no recovery. Such instruction by the court was tantamount to a direction that the jury find for the ' defendant. By their verdict, the jury evidently disregarded such instructions, and, even though the evidence had been sufficient to establish defendant’s negligence, the verdict of the jury would be set aside as contrary to the law of the case as charged by the court.
But, for the reasons before stated, I do not think the plaintiffs established, by their evidence, any negligence on the part of the defendant.
The judgment and order appealed from should be reversed and the complaint dismissed, with costs.
Clarke, P. J., Laughlin and Dowling, JJ., concurred; Smith, J., concurred in result.
Judgment and order reversed, with costs, and complaint dismissed, with costs.