77 N.Y.S. 820 | N.Y. App. Div. | 1902
Lead Opinion
The plaintiff was seriously injured on the 5th day of June, 1901, by hot water and steam discharged from a pipe which projected through the foundation wall of the defendant’s building, and he has commenced this action charging the defendant with negligence. The defendant is a manufacturing corporation and its plant lies contiguous to the premises of the Pennsylvania Railroad Company in the city of Buffalo. Across these lands a switch track extends, and patrons of the road have been in the habit of going upon the lands next to the track for the purpose of loading freight. There was no regular highway, but teams were driven in from Bailey avenue onto these premises, and there was a space from fifteen to twenty feet wide adjoining the railroad track upon which the teams traveled. There was no cross street from Lester street to Bailey
. In the operation of its plant the defendant’s employees used a large hammer operated by steam and whenever its use was commenced for a short time thereafter steam and water were forced violently through this exhaust pipe. The hammer struck from. 200 .to 250 blows a minute and the expulsion of the steam and water through the pipe was "with great force. The use of this hammer was only occasional and at times several days elapsed without anything being discharged through the pipe. -
On the oth of June, 1901, the plaintiff, who was a little boy, nine
If the plaintiff were upon the pathway when injured, clearly the jury would be justified in finding that his injuries were the result of the negligence of the defendant. The extensive travel along the path must have been known to its servants or, by the exercise of a fair degree of diligence, might have been known to them. The jury might well say the forcible discharge of a large volume of boiling water through this pipe into this much frequented pathway without any warning or any investigation to ascertain if people were passing along in front of the stream was negligence approaching a reckless disregard of the safety of others.
This case stands on the record before us on a somewhat more narrow margin. The court charged the jury in this language, “ The precise point where he was injured is not of material or vital significance in this case if he was upon the premises of the railroad, except in so far as it tends to throw light upon the main issues here,”
Another potent factor in determining the defendant’s liability is-that it was the affirmative act of the defendant’s employees which caused the injuries. There are a series of cases cited in the brief of the appellant’s counsel of which Nicholson v. Erie Railway Co. (41 N. Y. 525); Sutton v. N. Y. C. & H. R. R. R. Co. (66 id. 243), and Freeman v. Brooklyn Heights R. R. Co. (54 App. Div. 596) are types, but in each of these cases there was no act done-by the defendant. The negligence, if'any, was negative or passive, in its character, which constitutes, a clear distinction recognized in all the authorities. In the Nicholson case the plaintiff’s intestate-was passing over the tracks of the defendant and at most was there, only by the implied license of the defendant. A bunch of cars-standing on the track was set in motion by a violent gale and ran over Nicholson and killed him. It was held that the defendant: owed no active duty to the decedent, a mere licensee. In the Sutton case the plaintiff’s intestate, also a licensee, was killed by a car-running backwards without any human agency setting it in motion. In the Freeman case the plaintiff, a boy ten years of age, confessedlysui juris, had left the footwalk and was going over a curved girder
These cases are to be distinguished from the present one where the positive direct act of the defendant’s agents caused the in junes, and Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289); De Boer v. Brooklyn Wharf Co. (51 App. Div. 289), and Walsh v. F. R. R. Co. (145 N. Y. 301) are among the many cases which émphasize this distinction. Again, as already suggested, the plaintiff was not the licensee of the defendant, and that is the marrow of the cases relied upon by the appellant’s counsel.
In this case the slightest care on the part of the defendant’s servants would have obviated any danger. To look out along the course of the projected stream and ascertain if the way was clear required but a moment’s time. The deflection of the pipe downward or to protect it by a hood could have easily been done and removed the peril. In Driscoll v. Newark & Rosendale Lime & Cement Co. (37 N. Y. 637), where the plaintiff’s intestate, a licensee in the path on the defendant’s land, was killed by a rock thrown out of a quarry which the defendant was blasting and of which the decedent was not warned, the court say at page 639 : “ That it is but a slight measure of precaution against injury, to give notice in season to persons who may reasonably be expected to be within range of such explosion. * * * It was at least due to whoever was lawfully within reach,- to look and see if persons were near, and if so to warn them.’.’ At best the use of this steam and hot water with the territic force in its emission was perilous to people passing along this pathway. Any point between the defendant’s premises and the footpath was in close proximity to the latter; there was no fence or guard separating the embankment from the footpath; children were accustomed to pass along there and deflect from the beaten path; all of which are circumstances bearing upon the defendant’s negligence.
The plaintiff may not be said to have been careless, and it is not
Dr. Johnsori was the physician who attended the plaintiff and described the extent of the injuries inflicted. The area covered by the scalding was eight by fifteen inches “ extending from the fib down over the hip,” and the flesh and tissues sloughed off and proud flesh grew in and was scraped off and skin grafting was twice performed. Ulcerations were occurring at the time of the trial and the scar tissue was liable to break down at any time. He was asked : “ Can you- with reasonable certainty determine how long that condition of the breaking down of this tissue will last % -A. It may continue for years. Any irritation of the clothes may break it down for years to come.” A motion was made to strike out this testimony, which was denied and an exception taken; The examination continued : “ The muscles immediately beneath the skin where the burn was were burned away, part of them. That- side is not as •large as the other side. That will have' the effect to draw the spine to that side as it draws the body- to that side. I think that condition will be permanent. Q. You can say with a reasonable degree of certainty that that condition will be permanent ? - A. I think that side will always be drawn, the body will always be drawn to the injured side. Defendant’s Counsel: 1 move to strike out the answer until the witness can - say he can tell with reasonable certainty. By the Court: I will let it stand. Mr. Babcock : As not within the range of expert testimony and incompetent and immaterial.” The physician had been describing an existing wound and the testimony objected to related wholly to the probable effect of that precise condition and not to any new or supposititious'disease which might be evolved from it, and I think the evidence was' competent. (Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61; Knoll v. Third Ave. R. R. Co., 46 App. Div. 527; affd., 168 N. Y. 592.)
The judgment and order should be. affirmed, with costs and disbursements to the respondent.
McLennan and Williams, JJ., concurred; Adams, P. J., and Hiscock, J., dissented.
Dissenting Opinion
(dissenting):
I am unable to agree with the conclusions reached by a majority of my associates in this case for the following reasons :
First. The trial justice by his charge and refusals to charge permitted the jury to find a verdict for plaintiff, -although the latter at the time of the accident was several feet out of the path actually used by travelers and down the embankment towards defendant’s works. A recovery has been allowed upon the theory of negligence. There was ' nothing defective about defendant’s exhaust pipe. It can only be said that it was bound to use reasonable precaution not to injure those who might properly and lawfully come within reach of the escaping steam. Assuming that the railroad company had established a license in behalf of those who desired to
Second. I think the medical evidence which defendant’s counsel moved to strike out at folios 121, etc., where the doctor testified that certain results “ may ” follow in the future, was incompetent. I do not think that the doctor’s answer came within those rules of reasonable certainty which are applicable to that class of. evidence. The question was put to him in proper enough form, and, therefore, .no foundation laid for an objection to it. The error only appeared when the doctor gave his evidence, and the only way to get rid of it was by a motion to strike out, which the defendant’s counsel promptly made.
Judgment and order affirmed, with costs.
Dissenting Opinion
(dissenting):
While I am quite inclined to take the view of this case indicated in the first-paragraph of Justice Hiscock’s memorandum, I prefer to place my ■ vote for reversal upon another ground, concerning which I feel-more certain. I refer to the exceptions taken to certain portions of the evidence of Dr. Johnson and which appear at folios 122 and 123. It seems to me this evidence was clearly incompetent and inadmissible. It amounted to nothing more than the merest conjecture upon the part of the witness as to what might happen in the future. A lay "witness could have given the same answer just as well as the doctor, and it would have been quite as valuable, which is equivalent to saying that it was of no value coming from either source. But it undoubtedly gave the jury an opportunity to speculate and to- assume that what the witness said might happen very likely would happen. I think the- damages-awarded by thé jury in this case were enhanced by reason of this incompetent evidence.
The contention of the respondent’s counsel that all objection was waived by permitting the questions to be answered is not tenable. The form of the questions was entirely proper and unobjectionable, but the answers were not what the questions called for, and, therefore, the only thing the defendant’s counsel could do was to move to strike them out. For the refusal of the court to grant this motion I think a new trial should be granted.