102 A.D. 188 | N.Y. App. Div. | 1905
Lead Opinion
The defendant conducts its business on the east side of Ellicott street in the city of Buffalo, and in so doing is accustomed to use the premises in front of its building for loading and unloading its wagons. Skids are used, upon which barrels, boxes and other merchandise is taken to and from the wagons to the factory of the defendant.
On the 27th day of January, 1903, plaintiff was in the employ of the Frontier Telephone Company as a lineman. He left his resi
The morning was dark, or as the testimony showed at the time of the accident it was just before daylight, and some of the witnesses express it a twilight, and the ground and walk were covered with slush. The testimony showed that the skid was covered with some slippery substance from being used in the unloading of flour. As the plaintiff passed along the street there was quite a crowd of people passing, and as he came to the skid he stepped upon it, slipped and fell, sustaining the injuries complained of. The plaintiff testified that as he was walking down the sidewalk a number of people were coming down to work by two, three or four abreast, walking down the sidewalk. There were people right ahead of him and some farther on, and that he first noticed the skid when he stepped upon it. His testimony was that it was a cloudy, damp morning, foggy, that it was before sunrise and dark.
The defendant insists that its negligence was not established by the evidence. While no question is raised as to the presence of the skid as described by the plaintiff, it is insisted that the use of the sidewalk in the manner shown was a reasonable use, and negligence was not, therefore, established.
The evidence on helialf of the defendant, and which undertook to explain the use of the skid at this point, was to the effect that the wagons would load at this point, beginning at three o’clock in the morning, and the skid would be used until about five in the morning ; that generally the man there would then take it in. That at seven o’clock in the morning what was known as the city deliveryman and others would use the skid, and it would be shoved out again. That on the morning in question the skid had been used up to nearly five o’clock, and that at seven other wagons came, and
As to the contributory negligence of the plaintiff, it appears as above stated, that he was passing along in a crowd on the way to his place of business, that he did not discover the obstruction on the sidewalk until he stepped upon it, and that stepping upon it he slipped and received his injuries.
While there is not a great conflict in the testimony, yet different deductions may be drawn from it, and we think that the questions both of the negligence of the defendant and the contributory negligence of the plaintiff were properly left to the jury.
A few days after the accident the plaintiff was called upon by an attorney who, according to plaintiff, told plaintiff that he represented the Frontier Telephone Company in whose employment the plaintiff was at the time of the accident; that the company had sent him down in regard to the insurance, and that he wanted to get a statement from plaintiff. A number of questions were asked the plaintiff with reference to the statement as to'the insurance, and upon this appeal the defendant bases an assignment of error in that the counsel had unwarrantably brought the attention of the jury to the fact that the insurance company was defending the action. We do not think the incident warrants a deduction that the plaintiff acted improperly in this regard. The intimation was not that the insurance company was defendant, but that the employer of the plaintiff desired a statement with reference to the insurance. It is well known that employers are in the habit of carrying employer’s liability insurance, or insurance against injury to their employees through their negligence, and the statement of the plaintiff was to the effect that it was on behalf of his employers that the statement was desired ; not for the defendant, nor for an insurance company connected in any way with the defendant; and the plaintiff having been questioned with reference to the statement and the manner of obtaining it, was entitled to give the circumstances surrounding it, and the representations that were made to him at the time the statement was procured. If the statement was not" to the advantage of the defendant the plaintiff was in nowise to blame, and so long as the
The defendant presents one other ground, namely, that the court erred in admitting testimony with reference to the condition of the skid at the time of the accident.
It appeared that the weather was damp; that the skid, from its use, had become covered with a paste or slippery substance which rendered it more dangerous than it would have been if the planks had been dry and not slippery.
The complaint did not set forth that the skid was slippery, but it did allege that the skid or runway was placed and maintained in such a manner as to make it unsafe and dangerous to foot passengers walking along the sidewalk on the easterly side of Ellicott street; and that plaintiff received his injuries by reason of the placing of the skid on the sidewalk, and further alleging that defendant negligently maintained it there.
We do not think that the plaintiff was bound to allege the actual condition of the skid at the time. The allegation that a skid was used there was of itself an allegation of a dangerous obstruction. He was not bound to allege either the manner of construction of the skid, nor its actual condition at the time, unless that condition was one which of itself rendered the skid dangerous. He was not bound to allege the material of which it was constructed ; he was not bound to" allege the fact that it was either wet or dry before he could be allowed to give proof with reference to it; but having alleged that the skid was there, and it of itself being a dangerous obstruction, he can prove "the manner of construction, the material and its condition at the time of the accident. He was no more
Defendant requested the court to charge “ that no negligence can be predicated upon any condition of the skid, because it is not charged in the complaint.” The reply of the court we think fully indicates the correct proposition: “ I will not change my charge upon that subject. I think the condition just as it existed there is to be taken into account by the jury, and they are to determine from that whether the use was a reasonable one by the defendant under all the circumstances, taking into consideration not only the incline of the skid but its condition as well.”
We think the evidence raised a question of fact for the jury, that the questions were properly submitted by the court, and that the judgment should be affirmed.
All concurred, except Hisoock, J., who dissented in a memorandum.
Dissenting Opinion
I dissent from the conclusions reached by a majority of the court in favor of the affirmance of the judgment in this case. I think there are two reasons why the same should be reversed.
First. The trial court permitted the jury to find in favor of the plaintiff for the reason that the skid had become slippery through the deposit of dough thereon, and that plaintiff’s fall was due to his slipping upon this substance. In my opinion the complaint contained no allegations which covered this theory. It proceeds upon the line that the defendant placed and maintained the skid in such
It is suggested that it was unnecessary to point out in the complaint the special conditions which, as claimed, caused plaintiff to fall; that it was sufficient to allege in general terms that the skid was an obstruction and source of danger to those using the sidewalk. I agree that it would not be necessary to set up in the complaint in order to prove upon the trial some of the general features of the skid. Under general allegations it would probably be permissible to prove the ordinary and natural conditions of the obstruction, But I think that if the plaintiff expected to rely upon some particular, unusual, temporary feature which, rather than the general construction of the skid, caused his fall, he should have set the same forth in his complaint.
Second. I think it was an improper act upon the part of plaintiff’s counsel- to ask questions tending and intended to bring before the jury the fact that this action was being defended by an accident insurance company. It is perfectly clear that this was the intent tion. The learned trial court by his remarks at the time seems to have fully realized it. There was no other sufficient excuse for asking the questions propounded by plaintiff’s counsel. They were asked of his own client and there was no suggestion in the evidence already given by him that he had left out any part of the conversation between him and defendant’s attorney which required the asking of the objectionable question. Upon the examination of some unknown witness counsel, perhaps, might have been justified in putting questions intended to ascertain whether some part of a conversation had been left out, but it is not to be assumed that counsel was in such ignorance of what his client could testify to upon this-important subject as required the propounding of the question asked and complained of. It is urged that it is common for employers to
It seems to me that the conduct of counsel comes fairly within the. principles laid down by this court in Manigold v. Black River Traction Co. (81 App. Div. 381).
I think the judgment and order should be reversed.
Judgment and order affirmed, with costs.