45 N.Y.S. 728 | N.Y. App. Div. | 1897
Lead Opinion
This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. The defendant maintained at Rockaway Beach a pier or wharf at which its steamboats landed, and a hotel and music stand adjacent to it. There was a walk or promenade over forty feet wide made of planks, built from the landing place to the railroad station. On the wharf there was a hydrant from which water was furnished to the defendant’s steamboats and those of other parties. Attached to the hydrant-was a rubber hose, three or four inches in diameter, through which water was carried to the boats. The accident occurred about four o’clock in the afternoon of September 2, 1894. At the time of the accident .this hose lay extended on the- wharf. There were very few passengers on the boat from which the deceased came. Witnesses state the number as about fifteen. The deceased, in walking along the wharf, tripped on the rubber hose and fell, receiving injuries which caused his death. There was evidence tending to show that the deceased had previously met with an injury, affecting his health, and which might render him liable to a sudden attack of apoplexy.. The question, however; whether the death of the deceased was occasioned by the fall or by an apoplectic attack was plainly for the jury, and with that determination we cannot interfere.
We are also of opinion that defendant’s ownership of the wharf, hydrant and hose being conceded, the presumption was that it was responsible for the condition and position of the hose, and that to relieve itself from that presumption it was bound to explain how the hose was in .that position without the defendant’s fault. But still we think that the plaintiff’s cause of action was' not made out.
The judgment and order appealed from should be reversed and a ■new trial granted, costs to abide the event.
All concurred.
Concurrence Opinion
I concur in the views expressed by Mr. Justice Cullen in his opinion. I am also of opinion that actionable negligence upon the part of the defendant, in this case, was not established. There may exist circumstances where leaving a hose, of this character, stretched across the wharf ■ might constitute negligence. But under the circumstances of this case the inference of negligence may not be drawn. I do not understand that any. of my associates dissent from this view, but prefer to' place the reason for their conclusion upon the ground stated in the opinion.
Judgment and or.aer reversed and new trial granted, costs to abide the event.