Bolsenbroek v. Tully & Di Napoli, Inc.

• Decision Date: 16 March 1961
• Parties: Herman BOLSENBROEK, Jr., an infant, by his Guardian ad Litem, Herman Bolsenbroek, Sr., and Herman Bolsenbroek, Sr., Plaintiffs-Respondents, v. TULLY & DI NAPOLI, INC., Defendant-Appellant, and The Consolidated Telegraph & Electrical Subway Company, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 323

212 N.Y.S.2d 323

12 A.D.2d 376

Herman BOLSENBROEK, Jr., an infant, by his Guardian ad

Litem, Herman Bolsenbroek, Sr., and Herman

Bolsenbroek, Sr., Plaintiffs-Respondents, v. TULLY & DI NAPOLI, INC., Defendant-Appellant, and The

Consolidated Telegraph & Electrical Subway

Company, Defendants.

Supreme Court, Appellate Division, First Department.

March 16, 1961.

Bernard Meyerson, Brooklyn, of counsel (Max J. Merbaum, New York City, with him on the brief; Harry Wynn), for plaintiffs-respondents.

Thomas P. O'Malley, New York City, of counsel (George J. Conway, New York City), for appellant.

Before McNALLY, J. P., and STEVENS, EAGER, STEUER and BASTOW, JJ.

McNALLY, Justice Presiding.

A burning rag thrown on the face of the infant plaintiff, a lad of nine, caused injuries for which he and his father have recovered verdicts for $8,250.

Prior to February 21, 1956, defendant-appellant had excavated a street ditch for the purpose of installing utility conduits. Defendant-appellant had barricaded the sidewalk side of the ditch; a mound of dirt was raised betwen the ditch and the street and, prior to the occurrence, lighted smudge pots had been placed along the street side of the ditch to warn vehicular traffic of its presence.

The infant plaintiff testified that on said date he was on the sidewalk; he observed one or more smudge pots had been moved into the ditch and a bonfire started; a boy placed a rag into the flame and the rag ignited; another boy removed the burning rag with the end of a stick and twirled it. The burning rag was thus thrown upon the infant plaintiff's face causing the personal injuries for which this suit was brought.

All the requirements of the permit for the excavation in respect of barricades and night lighting were observed by defendant-appellant. O'Callaghan v. Commonwealth Engineering Co., 247 N.Y. 127, 159 N.E. 884, 60 A.L.R. 1424; Johnson v. City of New York, 208 N.Y. 77, 101 N.E. 691, 46 L.R.A.,N.S., 462. The smudge pots were of the type customarily employed in street excavations at and after twilight. The evidence was that on several occasions prior to the occurrence children had been boserved playing in and removing smudge pots into the ditch. Defendant-appellant employed a watchman between 4:00 p. m. and midnight whose duty it was to tour its various excavations in a pickup truck; he usually made two or three trips during this span of duty.

The smudge pots here involved are not dangerous instrumentalities. Morse v. Buffalo Tank Corp., 280 N.Y. 110, 19 N.E.2d 981; Meyers v. 120th Ave. Building Corp., 9 A.D.2d 931, 195 N.Y.S.2d 163. Defendant-appellant was required to exercise reasonable care in employing proper safeguards to prevent those lawfully using the street from falling into the ditch. Towards that end, in accordance with the conditions of the permit for the excavation, the defendant-appellant supplied the required lighting after twilight. In the circumstances the defendant-appellant was not required to fence off the ditch or station a watchman thereat. Johnson v. City of New York, supra, 208 N.Y. at page 82, 101 N.E. at page 693. 'Even if there be some duty on one lawfully using the city streets for the construction of a building not to create a condition which is inherently dangerous for children who might play there, he is not under any affirmative duty to make the place entirely safe for children or to protect them against the ordinary hazards of boyhood.' O'Callaghan v. Commonwealth Engineering Co., supra, 247 N.Y. at page 130, 159 N.E. at page 885.

Moreover, the infant plaintiff's assault by an unidentified boy was not reasonably foreseeable. Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253; Beickert v. G. M. Laboratories, 242 N.Y. 168, 151 N.E. 195; Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529, L.R.A.1917B, 1058; Morse v. Buffalo Tank Corp., supra. The assault was the intervening and competent producing cause of the occurrence and injuries. Saugerties Bank v. Delaware & Hudson Co., 236 N.Y. 425, 141 N.E. 904; Perry v. Rochester Lime Co., supra; Gralton v. Oliver, 277 App.Div. 449, 101 N.Y.S.2d 109. The act of a party sought to be charged is not to be regarded as a proximate cause unless it is in clear sequence with the result and unless it could have been reasonably anticipated that the consequences complained of would result from the alleged wrongful act. Saugerties Bank v. Delaware & Hudson Co., supra, 236 N.Y. at page 430, 141 N.E. at page 905.

'Since the evidence as to the cause of the accident which injured plaintiff is undisputed the question as to whether any act or omission of the defendant * * * was a proximate cause thereof was one for the court and not for jury.' Gralton v. Oliver, supra, 277 App.Div. at page 454, 101 N.Y.S.2d at page 114; see, also, Hoffman v. King, 160 N.Y. 618, 628, 55 N.E. 401, 404, 46 L.R.A. 672; Trapp v. McClellan, 68 App.Div 362, 365, 74 N.Y.S. 130. The evidence on proximate cause is undisputed and therefore the issue was one for the court to decide.

We conclude the plaintiffs-respondents failed to establish their causes of action. Were we of the opinion that the evidence presented factual issues on liability, we would be in accord with the views expressed in the dissent.

The judgment should be reversed, on the law and the facts, and the complaint dismissed, with costs to defendant-appellant.

Judgment reversed, on the law and on the facts, and the complaint dismissed, with costs to appellant.

All concur except STEUER, J., who dissents in part and votes to reverse and order a new trial in opinion.

STEUER, Justice (dissenting in part).

A majority of the court is of the opinion that the facts adduced at the trial fail to establish a cause of action. The infant plaintiff was standing either on the sidewalk or in the roadway, looking down at some boys playing in a trench. The trench had been excavated by defendant for the purpose of installing certain utilities and was made pursuant to municipal permit. The trench was marked off from the sidewalk by barricades and flares of the usual smudge pot type were placed about the trench. One of the boys in the excavation ignited a rag from the flame of one of the flares, whirled the rag about and let it fly. It struck plaintiff causing the injuries complained of.

There can be no doubt that the streets must be maintained not only for those who use them for travel but also for those who use them for any other legitimate purpose. Langlois v. City of Cohoes, 58 Hun 226, 11 N.Y.S. 908; Leggett v. City of Watertown, 55 App.Div. 321, 66 N.Y.S. 910. And that includes one who uses the highway to observe what is to be seen even if what is observed is a source of danger. Johnson v. City of New York, 186 N.Y. 139, 78 N.E. 715. Of course liability would depend on responsibility...