Travell v. Bannerman

• Decision Date: 03 March 1903
• Citation: 66 N.E. 583,174 N.Y. 47
• Parties: TRAVELL v. BANNERMAN.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 47

66 N.E. 583

TRAVELL

v.BANNERMAN.

Court of Appeals of New York.

March 3, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frank Travell, by George J. Travell, his guardian ad litem, against Francis Bannerman. From a judgment of the Appellate Division (75 N. Y. Supp. 866) affirming a judgment for plaintiff, defendant appeals. Reversed.

Herbert C. Smyth, for appellant.

Bruce R. Duncan, for respondent.

WERNER, J.

The history of this case is as follows: For many years the defendant has been the owner of a gun and ammunition works in the borough of Brooklyn, N. Y., on Bergen street, between Utica and Schenectady avenues. Defendant's works are inclosed by a high board fence, outside of and adjoining which there is an open vacant lot, also owned by the defendant, a part of which, near the fence, is used as a dumping ground for ashes, old metal, and other refuse. For some time the plaintiff and other boys in the neighborhood had used this open lot as a ball ground, and had rummaged in the ash heap for scraps of brass and other things to sell. On the 14th day of September, 1900, the plaintiff was standing on St. Mark's avenue, just outside of the vacant lot, watching some men engaged in work on the street. Two of his boy acquaintances (Nesson and Woelfle) were in the lot near the ash heap, and picked up a piece of black material, resembling asphalt, about a foot long, embedded in which were pieces of brass. They brought it to the place where the plaintiff was standing, and proceeded to extract the brass therefrom by pounding and breaking. This caused an explosion, in which the plaintiff was injured. At the trial is was shown that at some time within the week preceding the accident the defendant's employés had been burning out a quantity of old cannon primers that had become worthless except for old brass. This was done outside of the factory, but inside of the inclosed yard. These primers had been stored in two boxes in defendant's factory, and had become corroded so that some of them stuck together, but the evidence does not describe them in such a way as to answer definitely to the description of the material found by the boys. Neither does the evidence disclose satisfactorily the precise nature or description of the residuum that was left after the primers had been put through the crucible. There is no direct evidence showing how this material came to be in the open lot where the boys found it. The uncontradicted evidence of the witnesses for the defendant was to the effect that the factory was closed from June 30th preceding the accident to October 4th following it, and during that period the door in the fence leading to the open lot was locked, and was not opened. The key to the lock had been lost, and shortly after the closing of the factory a canvas was placed along the fence and in front of this door, so that it could not be opened without taking down or tearing the canvas. During the period in which the factory was closed, a few men were kept at work. The rubbish that accumulated during that time was deposited in the inclosed yard. There was some evidence suggesting that the boys in the neighborhood were in the habit of climbing the fence which inclosed the factory grounds, and getting upon a shed connected with it. One of the plaintiff's witnesses testified that on the day following the accident he saw on this shed, and also among the rubbish in the vacant lot, pieces of the black material found by the boys Nesson and Woelfle, which caused plaintiff's injuries. The trial court submitted the case to the jury for a general verdict, and also asked them to answer the specific question whether the defendant had negligently placed the explosive material in the open lot. The jury answered this question in the affirmative, and brought in a general verdict for the plaintiff. The Appellate Division, by a divided court, affirmed the judgment entered on this verdict.

Two questions are here presented for review: (1) Is there any evidence of freedom from contributory negligence on the part of the plaintiff? (2) Is there any evidence of negligence on the part of the defendant? The question whether the plaintiff, in view of his age, the appearance of the material, and all the facts of the occurrence, was guilty of contributory negligence, was clearly one of fact for the jury. Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326;Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 290, 44 Am. Rep. 377;Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248, 252; Haycroft v. L. S. & M. S. R. Co., 2 Hun, 489, affirmed in 64 N. Y. 636.

Upon the alleged negligence of the defendant we have a much more...