Downes v. Elmira Bridge Co.

• Decision Date: 05 August 1904
• Citation: 179 N.Y. 136,71 N.E. 743
• Parties: DOWNES v. ELMIRA BRIDGE CO.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 136

71 N.E. 743

DOWNES

v.ELMIRA BRIDGE CO.

Court of Appeals of New York.

Aug. 5, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William H. Downes against the Elmira Bridge Company. From a judgment of the Appellate Division (81 N. Y. Supp. 834) affirming a judgment for defendant entered on a dismissal of the complaint, plaintiff appeals. Affirmed.

NEGLIGENCE-EVIDENCE-ASSUMPTION OF RISK.

1. Certain wharves, while private property, were used, before work of repairing the same was begun, by the public, to transact business on the piers, and to some extent while the work was in progress. The work was in such condition as to show that the public use was interrupted. Held, one going thereon and injured, not willfully, but by the building operations lawfully conducted, after he had knowingly placed himself in a position of obvious danger, cannot recover for the resulting damages.

Edward J. McCrossin, for appellant.

Charles MacVeagh, for respondent.

VANN, J.

It is alleged in the complaint that on the 17th of August, 1896, the defendant, while carrying out a contract to erect certain ironwork at the foot of Montague street, in the borough of Brooklyn, was guilty of such negligence in handling a heavy girder as to severely injure the plaintiff, and cause him to lose one of his legs. The usual issues in such cases were raised by the answer. Upon the first trial the plaintiff had a verdict, but the judgment was reversed by the Appellate Division. 41 App. Div. 339,58 N. Y. Supp. 628. Upon the second trial the same facts were shown, in substance, and the court granted a nonsuit upon the ground that the plaintiff, in going upon private property in a condition of disorder without an invitation from the owner, took whatever risk there was, and that there was no evidence of willful or wanton negligence. The Appellate Division affirmed (81 N. Y. Supp. 834), and the plaintiff came here.

When the plaintiff was injured he was employed by the United States government as a weigher in the customs department on the wharf of the Brooklyn Wharf & Warehouse Company, located along the East river front, at the foot of Montague street, in the borough of Brooklyn. At the same time the defendant was engaged under a contract with said company in constructing a railroad terminus upon the wharf, building a floating bridge, and making alterations upon the docks along the river front. The wharf and warehouse company owned the property where the work was going on, which consisted of wharves and warehouses connected with slips and piers where vessels were loaded and unloaded. While the wharves were private property, they were used, before the work was commenced, by the public, to transact business on the piers and at the warehouses, and to some extent while it was in progress. The wharves, however, were in a condition of great disorder, obstructed by piles of material, and by the machinery, tools, and appliances used in the work.

The wharf and warehouse company owned the warehouses known as the Pierpont and Mediterranean Stores, which were bounded on the westerly side by wharves; also the property of the company, leading to piers and slips extending into the river; on the northerly side by other wharves and warehouses belonging to other parties; on the easterly side by Furman street; and on the southerly side by Montague street, leading to the Wall Street Ferry. The work was going on at a part of a wharf which opened southerly into Montague street. The changes had been in progress for more than two months, and at first the wharf was torn up so as to substantially exclude the public, but when the plaintiff was injured the flooring had been relaid. The wharf, however, was still much obstructed by materials and appliances. From time to time, barriers had been erected, consisting of planks laid across barrels, or a rope stretched across the opening; but they were sometimes removed by the defendant's workmen, and sometimes carried away by thieves. The defendant was moving a large iron girder, about 90 feet long and 10 or 12 feet wide, consisting of two parallel beams joined together by parallel crossbars so as to make a solid structure. It weighed 36 tons, and, standing on its side, was 10 or 12 feet high, and extended diagonally across the wharf at the opening on Montague street, ‘blocking the way to the warehouses.’ One end was so near the southerly storehouse that no one could pass between. On the westerly side was a long pile of stones, 4 or 5 feet wide, and higher than a man's head, but there was an open space of 4 or 5 feet between the girder and the stone pile. All the rest of that part of the wharf was obstructed by railroad iron, frogs, and stones, and ‘was all littered up.’ There was no way to pass directly from the storehouses to Montague street, except by going through this open space, but there was a regular passageway about 18 feet wide, under the storehouses, leading to Furman street, which was crossed at a short distance to the south by Montague street. This passageway was used by teams and footmen, and had been used by the plaintiff, but it was narrow, and the presence of trucks and traffic made it more of less dangerous for pedestrians. When the accident happened, the girder was resting partly upon rollers, and partly upon an iron bar connected with a jack by which it had been raised 18 inches or 2 feet at one end. Tackle and a winch were used to move the girder toward its destination on the river front, where it was to become part of a floating bridge to take freight from vessels lying in the slips. The method of moving it was to jack it up at one end, place the rollers in position, pull it forward by tackle attached to the other end as far as the rollers would permit, and then stop, readjust the rollers, and repeat the process. The workmen had been engaged in moving it for several days.

At about 4 o'clock in the afternoon of August 17, 1896, the plaintiff finished his work in the Mediterranean Stores, which were adjacent to and northwesterly of the Pierpont Stores, put up his tools, and started for home. He wished to reach Montague street, and, instead of taking the route which passed under the warehouses, he attempted to pass through the narrow space between the girder and the stone pile. At this time many workmen were around the girder, which had been standing still for a few minutes, waitingfor orders, and in readiness to move it further on...