Duhme v. Hamburg-American Packet Co.

• Decision Date: 06 April 1906
• Citation: 77 N.E. 386,184 N.Y. 404
• Parties: DUHME v. HAMBURG-AMERICAN PACKET CO.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 404

77 N.E. 386

DUHME

v.HAMBURG-AMERICAN PACKET CO.

Court of Appeals of New York.

April 6, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Charles Duhme, an infant, by Henry Duhme, his guardian ad litem, against the Hamburg-American Packet Company. From an order of the Appellate Division (94 N. Y. Supp. 1102,107 App. Div. 237), reversing a judgment for defendant entered on dismissal of the complaint, defendant appeals. Reversed.

Edward T. Bartlett, J., dissenting.

Frank Verner Johnson, for appellant.

Nathan D. Stern, for respondent.

GRAY, J.

The plaintiff seeks to recover damages of the defendant for personal injuries sustained through the breaking of a hawser while one of its steamships was being brought into its pier. The result of the trial of the action, so far as our review is concerned, was the dismissal of the complaint by the trial court upon the case as made by the evidence of both parties. The Appellate Division in the Second Department reversed the judgment thereupon entered in favor of the defendant and ordered a new trial. The defendant has appealed to this court, and the question for our consideration relates to the sufficiency of the evidence as to the defendant's negligence to make the case one for the determination of the jury.

The plaintiff, a boy about nine years of age, accompanied by his mother, was upon the defendant's pier, at Hoboken, N. J., expecting a relative to arrive upon the steamship Moltke. Upon the stemship reaching the pier, and when in the course of being warped in alongside of it, the plaintiff and his mother were standing at an opening of the pier shed, or building, which was guarded by a rope drawn across. A wire rope, or hawser, which ran from the vessel to a mooring post on the pier, parted, and in the recoil consequent thereupon the plaintiff was struck violently in the face. The wire rope itself did not break; but the ‘shackle,’ as it is termed, which fastened an end of the rope brought around upon it so as to form a loop, gave way. It was alleged in the complaint, as the cause of action, that the defendant ‘was negligent and careless in the management and operation of the pier or dock, and of said vessel, while so attempting to make the same fast to said pier or dock, and so carelessly and negligently operated and managed the same that in consequence thereof * * * a hawser parted and broke.’ Upon the trial, the plaintiff's evidence was confined to the nature of the injuries sustained and to occurrences upon the pier. Beyond the statement of the sudden breaking of the hawser, there was no evidence tending in the remotest degree to prove the allegation of negligence made in the complaint. There was evidence of the presence of a large number of persons upon the pier, and that in consequence the plaintiff and his mother were pressed upon and pushed forward in the opening. On the defendant's part the evidence could furnish no explanation of the cause of the parting of the hawser; but it did show that it had been recently purchased, that it was of the size usual for the purpose for which it was then used, that it was in good condition, and that the shackle showed a clean break; that is, one not the result of some flaw, or defect, in the metal. It also showed that efforts were made by the employés of the defendant upon the pier to keep the people away from the openings, which were necessarily there for the purpose of the business, by pushing them back and by warning them of the danger of remaining in such a place. That these precautionary efforts had been made appeared, also, from the cross-examination of the plaintiff's witnesses.

It was the view of the court below, in reversing the judgment upon the nonsuit, that the doctrine of ‘res ipsa loquitur’ was applicable to a casualty of the character disclosed by the proof, and that, in the absence of explanation by the defendant, the inference of negligence was authorized under the circumstances. I think that there was error in the reversal, and that the doctrine of ‘res ipsa loquitur’ had no place in the determination of the issue. It was incumbent upon the plaintiff to give some evidence establishing, or tending to establish, negligence on the part of the defendant, and it was not sufficient for his case to merely prove the accident. I think that the plaintiff was upon the pier as a mere licensee, for he and his mother had no permission to be there, from the defendant or from the custom house authorities; but if we assume that they were there lawfully, because of an implied invitation, I cannot perceive that the defendant was under any other obligation to them, or owed them any other duty, than to have its pier in a reasonably safe condition for access. Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175. If we shall assume, further, that its duty extended to the exercise of such ordinary care in the process of docking its vessel as to render it reasonably safe for persons to remain upon the pier, we shall have stated the fullest measure of the defendant's obligations. It was under no other, and before it could be held to a liability for the accidental injury to this plaintiff it would be necessary to show a neglect of duty in the respects mentioned, if not by direct testimony, at least by such facts or...