Fluker v. Ziegele Brewing Co.

• Decision Date: 07 February 1911
• Citation: 201 N.Y. 40,93 N.E. 1112
• Parties: FLUKER v. ZIEGELE BREWING CO.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 40

93 N.E. 1112

FLUKER

v.ZIEGELE BREWING CO.

Court of Appeals of New York.

Feb. 7, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Grant Fluker, by Edward Fluker, his guardian, etc., against the Ziegele Brewing Company. From a judgment for plaintiff (136 App. Div. 945,121 N. Y. Supp. 1130), defendant appeals. Reversed, and new trial ordered.

Alfred L. Becker, for appellant.

Charles M. Harrington, for respondent.

GRAY, J.

The plaintiff brought this action to recover damages for personal injuries sustained by him under circumstances to be stated. As the complaint was originally framed, the defendant was charged with maintaining a nuisance, in the way in which it piled up beer kegs, partly upon its premises, and partly in the adjoining public alleyway. Upon the trial, however, the court permitted the complaint to be amended, so as to charge the defendant with negligence, and the case was submitted to the jury upon that theory only. The plaintiff recovered a verdict, and the judgment thereupon entered was affirmed at the Appellate Division, by a divided vote of the justices.

The defendant occupied with its brewery one side of an alley 15 feet in width, which ran between two streets in the city of Buffalo and was used as a public thoroughfare. It had no sidewalks, and on the brewery side was a recess, called an areaway, some 80 feet in length and of a depth of some 25 feet. The side opposite to the brewery was occupied by dwellings, in one of which the plaintiff, a boy 9 1/2 years of age at the time of the accident, resided with his parents. It had been the custom of the defendant to pile up empty beer kegs in this areaway. The had been done early in the afternoon of the day in question, and the pile of kegs was suffered to remain through the evening and night. As piled up, they extended some distance into the alley. The kegs weighed, each, 90 pounds and were stacked three high, either in pyramidal form, or vertically, one upon the other; the evidence varying in that respect. In the evening, when not yet dark the plaintiff was playing with two other boys a game of ‘tag,’ in which they would chase each other about or around the pile of kegs. The plaintiff happened to strike one of the kegs on a corner of the pile, and caused two to fall upon him. He was knocked down, and his arm was broken. The evidence permitted the jurors to infer, either that the kegs were negligently piled upon each other, or that they were piled safely in the ordinary form of a pyramid. The plaintiff also relied upon an ordinance of the city of Buffalo, which prohibited any persons from using ‘any part of a public street, or alley, or any public grounds for the deposit of any building, paving, or sewer materials, or any other materials, except for the immediate transfer of the same to the premises fronting on the portion of said street so occupied,’ or from allowing the same to remain thereon ‘longer than sundown of the same day, under penalty of not less than ten dollars or more than fifty dollars.’ The ordinance authorized the superintendent of streets to permit substances to be deposited by the property owner, under certain conditions. The defendant does not claim, in this case, that it had procured any such permit to use the alley.

The trial judge instructed the jurors fairly with respect to the inquiry as to the negligence of the defendant, as well as to the contributory negligence of the plaintiff. After adverting to the facts, he put the question of the defendant's negligence in this way: ‘Would an ordinarily prudent person be impressed that the plaintiff would be liable to play about there, and the kegs be liable to tumble on him, and he receive an injury? * * * The theory of the plaintiff is that any prudent person would be impressed that it was dangerous, and therefore negligent, to leave those kegs piled as here disclosed.’ When referring to the municipal ordinance, he assumed that the evidence warranted the finding that the defendant had violated it, in piling its kegs in the street without obtaining...