183 A.D. 897 | N.Y. App. Div. | 1918
Dissenting Opinion
I dissent. In August, 1914, the defendant, a contractor with the city of New York for building a subway in a city street, lawfully constructed, as incidental to the work, a temporary street surface of wooden planks and beams, so that the thoroughfare was kept open for use of traveler and traffic. Between 7 and 8 a. m. of November 10, 1914, the plaintiff, a traveler, left the curb in his attempt to cross to the opposite sidewalk. As he stepped upon a plank of the sidewalk, the plank rose in ah- and cast him, down to his injury. He has recovered a verdict at Trial Term for the negligence of the defendant, and this court is about to affirm the judgment and order. The obligation of the defendant was the same as that of the city if the city had constructed and had maintained this street. (Schmidt v. City of New York, 179 App. Div. 667, and cases cited.) It was to exercise reasonable care and vigilance; and negligence is the ground of liability. (Hunt v. Mayor, etc., 109 N. Y. 134, 141.) The proof made by the plaintiff was not supplemented or strengthened by that made by the defendant. The plaintiff testifies only that the plank when trod upon rose up, and that, when it went up, it di ' not have any nails in it. The plaintiff was supported only by his witness Carney, 10 or 12 feet distant at the time, who testifies that when the plank went up he did not see “ any nails or anything.” This witness did testify that there were no nails, but'that statement obviously rests upon Ms sight at the instant the plank tilted, for he testifies that thereafter he did not go to look at the plank and did not examine it. The plaintiff testifies that after the casualty he did not go to look at the plank, and that he could not say whether the planks were loose or were nailed. And Carney gives like testimony, adding: “ I could not say ” whether they had ever been nailed down. “ I guess they were nailed down a good many times.” On the other hand, the plaintiff testifies that this plank did not appear defective or unfastened, but safe, secure and- level in its place. The defendant showed that in the construction of tMs fabric all of the planks had been fastened by four-inch nails; that there had been constant inspection, with action whenever required. The defendant called three policemen, who at different times had patrolled in tMs locality constantly, of whom none had ever observed any defect at tMs place. If the plaintiff’s proof justified the finding that there were no nails in the plank that rose up, that finding did not import that the plank was not nailed down when the plaintiff trod upon it. There is no proof as to the manner of the nailing that indicates that tMs plank must carry with it, and not leave in the other planks, any nails that held it in place. The principle of proof known as res ipsa loquitur did not apply. (Schmidt v. City of New York, supra; Ludwig v. Metropolitan St. R. Co., 174 N. Y. 546; City of Atlanta v. Stewart, 117 Ga. 144; City of Columbus v. Ogletree, 96 id. 177; Cunningham v. Dady, 191 N. Y. 152.) In a great public thoroughfare like this, open to travel and traffic, there were many possible, if not probable, agencies that could have loosened
Lead Opinion
No opinion. Mills, Rich and Kelly, JJ., concm-red; Jenks, P. J., read for reversal, with whom Blackmar, J., concurred.