239 F. 296 | 2d Cir. | 1917
At the time of the occurrences in question the defendant operated a- large hotel fronting on Broadway and occupying the entire space between Seventy-Third and Seventy-Fourth •streets for a considerable distance back from Broadway. The hotel is 18 stories in height and has accommodations for several thousand guests. A part is used for transient guests and a part is occupied by apartments, where the guests do their own housekeeping. The hotel has four main entrances for the use of guests — two on Broadway, one on Seventy-Third street and one on Seventy-Fourth street.
There is also a delivery entrance which opens into the basement where there is a service elevator for the delivery of merchandise and supplies of all kinds to the hotel and its guests. The only way of reaching the delivery entrance at the time in question was by a runway extending from street to street at the rear of the building. This runway was bounded by high walls o-n both sides. It was a one way road in the sense that vehicles could not pass each other while moving on the road proper. It was near the Seventy-Fourth street entrance that Sullivan received the injury which caused his death. A short distance from the entrance to the runway was a chain with rings at either
Sullivan had no notice of the chain and it does not appear that he was at this particular entrance at any time previous to March 21st, the day when he was killed. Fie was there during the morning of the 21st, but there was no chain across the runway at that time. At about half past 6 on March 21st the Gorham delivery wagon on which Sullivan was employed again drove up to the Seventy-Fourth street entrance and Sullivan, with his-packages, started down the runway at a pace a little faster than a walk. When he reached the chain he was seen to “bound back” and fall. He was unconscious when the onlookers reached him, lying directly under the chain. He revived, but was taken violently sick soon after and died at the hospital the same evening.
There is no pretense that Sullivan was not an intelligent, careful man, with all his faculties unimpaired. There is no proof that he knew the custom of the Ansonia to put a chain across the runway at 6 o’clock. He had- been there that morning and heard nothing and saw nothing to indicate that a chain was to be fastened across the roadway which was unobstructed in the morning.
The language of the New York Court of Appeals in McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668, is applicable:
“But one who passes along a sidewalk has a right to presume it to be safe. He is not called upon to anticipate danger, and is not negligent for not being on Ms guard. Whoever left this area in the sidewalk open and uncovered was guilty of a positive wrong. It amounted to an obstruction of the street. It was a trap set for the unwary, or for those hurried or inattentive. Nobody was bound to anticipate its existence, or to look for it, although it was visible. The plaintiff, therefore, was bound to no special care to avoid such an accident as happened, and the jury were justified on the facts in finding her free from negligence.”
We think the questions of fact were fairly presented to the jury and their verdict was fully justified by the evidence.
Judgment affirmed with costs.
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