Galvin v. Mayor
| Decision Date | 15 January 1889 |
| Parties | GALVIN v. MAYOR, ETC., OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Action by Mary Galvin, as administratrix of Richard Galvin, deceased, against the city of New York, to recover damages for the defendant's negligence, whereby plaintiff's intestate was killed. The deceased and one John Purcell were engaged to deliver coal at the court-house in defendant city. The coal was delivered through a hatchway in the sidewalk, over which was an iron grating, which was raised against the side of the building. This grating was not fastened, and it fell on the intestate, causing his death. Plaintiff was nonsuited, and appeals.
E. J. Myers, for appellant.
D. J. Dean, for respondent.
We think this was a case for the jury in all of its aspects. The plaintiff's intestate was the driver of a cart employed to deliver coal at the court-house in the city of New York. While engaged in the performance of this duty, a heavy iron grating fell upon him, and inflicted injuries from which he subsequently died. This grating hung on hinges, and was used to cover a hole or hatchway in the sidewalk leading into the basement of the court-house, through which the coal was to be delivered. While the work of delivery was in progress, this grating was intended to be thrown back against the side of the building. It then stood nearly upright, and when unfastened was liable to be thrown down by the slightest jar or interference. Ordinarily such a situation would not seem likely to threaten any danger except to the cart from which the coal was to be dumped into the hatchway. It is not obvious why the driver should necessarily be in a position to receive injury, but this was a question to be determined as one of fact by the jury.
We infer from several offers made by the plaintiff that she intended to show that her intestate was called upon, in the performance of his duty, to go into the basement to present and procure the signature of some official of the city to a ticket showing the weight of the load he had to deliver. This evidence the court below, upon the objection of defendants, excluded. We can see no valid reason for its rejection. The evidence tended to disclose a reason for the presence of the deceased at the place where he received his injuries, and bore upon the question of his alleged negligence.
The trial court held that the plaintiff could prove only what the deceased actually did, and not what the usual and customary mode of delivering coal required him to do. The evidence tended to show a known and established mode of doing the business which was the subject of investigation, and was clearly competent. No question arises as to the defendant's negligence, and it was admitted on the trial that it owned the court-house, and was charged with keeping and maintaining the same and its appurtenances in a safe and suitable condition, free from danger to those lawfully in and about the building. The evidence tended to show that the grating, while thrown back to permit the dumping of coal, was dangerous, and liable to inflict injury upon those engaged in that business, unless securely fastened by a hasp, hook, or other contrivance. It also tended to show that the appliances furnished by the city were wholly inadequate to effect the purpose. A case of substantially undisputed negligence was made out against the defendant.
Upon the trial the plaintiff was nonsuited upon two grounds, viz.: (1) That negligence producing the injury was imputable to Purcell, a co-servant of the deceased, for which the defendant was held not to be liable; and (2) that the deceased was himself, as matter of law, guilty of contributory negligence.
We are not aware of any rule which exempts a wrong-doer from the consequences of his own negligence, because some stranger discovers it and omits to repair it. Purcell was not the servant of the city, and owed it no duty to put the court-house in proper condition to receive coal safely. This duty the law imposed upon the city, and it was not excused from its performance by the fact that third persons had observed its non-performance, and had omitted to repair its neglect. Benzing v. Steinway, 101 N. Y. 547, 5 N. E. Rep. 449; Webster v. Railroad Co., 38 N. Y. 260;Barrett v. Railroad Co., 45 N. Y. 628. The familiar rule that a master is not liable to his servant for damages occasioned to him through the negligence or unskillfulness of his co-servant has no application to the facts of this case, and cannot be invoked to shield the defendant from the consequences of its negligence. Wright v. Railroad Co., 25 N. Y. 562.
A more serious question grows out of the alleged negligence of the plaintiff's intestate arising from the fact that no one observed him at the precise moment of the accident, or was able to testify as to what he was doing when the grating fell upon him. Under the strict rule of evidence adopted by the...
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... ... R. Co. v. Powers, 149 ... U.S. 43, 37 L.Ed. 642, 13 S.Ct. 748; Dalton v. Chicago, ... R. I. & P. R. Co. 104 Iowa 26, 73 N.W. 349; Galvin ... v. New York, 112 N.Y. 223, 19 N.E. 675; Hemingway v ... Illinois C. R. Co. 52 C.C.A. 477, 114 F. 843; Whaley ... v ... ...
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Ferreira v. City of Binghamton
...597 N.Y.S.2d 653, 613 N.E.2d 559 [1993] ); where an iron grate at a courthouse crushed a coal deliveryperson ( Galvin v. Mayor of New York, 112 N.Y. 223, 19 N.E. 675 [1888] ); where police allegedly shot and killed someone who was intoxicated and not posing any harm to the officers ( Flamer......
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Ferreira v. City of Binghamton
...597 N.Y.S.2d 653, 613 N.E.2d 559 [1993] ); where an iron grate at a courthouse crushed a coal deliveryperson ( Galvin v. Mayor of New York, 112 N.Y. 223, 19 N.E. 675 [1888] ); where police allegedly shot and killed someone who was intoxicated and not posing any harm to the officers ( Flamer......
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Connell v. Hayden
...proposition can rest on no sound principle, but it is useless to discuss it, for the contrary rule is settled by authority. (Galvin v. The Mayor, 112 N.Y. 223 Seaman v. Koehler, 122 N.Y. 646 We may, however, say this: That as the concurring negligence of a co-servant is no bar to the action......