Johnson v. City of New York

• Citation: 208 N.Y. 77,101 N.E. 691
• Parties: JOHNSON v. CITY OF NEW YORK.
• Decision Date: 04 April 1913
• Court: New York Court of Appeals

208 N.Y. 77

101 N.E. 691

JOHNSON

v.CITY OF NEW YORK.

Court of Appeals of New York.

April 4, 1913.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John Martin Johnson, an infant, by Carolina Locke, his guardian ad litem, against the City of New York. From a judgment of the Appellate Division, Second Department (151 App. Div. 886,135 N. Y. Supp. 1120), affirming a judgment entered on a verdict for plaintiff, defendant appeals. Reversed, and new trial granted.Archibald R. Watson, Corp. Counsel, of New York City (James D. Bell, of Brooklyn, of counsel), for appellant.

George J. S. Dowling, of Brooklyn (Philip A. Brennan and Fred S. Lyke, both of Brooklyn, of counsel), for respondent.

WERNER, J.

The plaintiff, a lad of 12, fell into a trench which the defendant's contractor had made for the building of a sewer in Gold street, between Tillary and Johnson streets, in the borough of Brooklyn. He sustained severe injuries, and through his mother as guardian he instituted this suit to recover damages. At Trial Term he recovered a verdict which was sustained by a divided court at the Appellate Division, and the defendant has brought its appeal to this court. The case is one which must arouse sympathy even if it cannot bear the test of rigorous legal rules for the unfortunate plaintiff has doubtless sustained injuries which may affect the whole of his life. It is possible that the consideration may have had its influence in securing a verdict that was not satisfactory to either of the litigants, for both moved to have it set aside. The grounds of these motions are not set forth in the record, but obviously the plaintiff's counsel was not satisfied with the amount ($2,500), and the counsel for the defendant held to his contention, made upon the motions to dismiss the complaint, that the evidence did not support a verdict for the plaintiff.

[1] We think the motion to dismiss the complaint, made at the close of the plaintiff's case, should have been granted; but the necessity for such a ruling was made even more apparent by the evidence adduced on behalf of the defendant. The whole case was then so conclusive against the plaintiff as to require the trial court to grant the motion when it was renewed.

There is no controversy as to the physical conditions which existed in Gold street at the time of the accident. The defendant, through its contractors, was constructing a sewer twelve feet in diameter, and this was to be laid at a depth variously stated of from 25 to 35 feet. The trench for this work was 16 feet or more in width at the top, and left undisturbed a narrow strip of the roadway on either side, probably not more than 6 or 7 feet in width. The walls of the trench were retained by sheathing which, in some places, had been driven down so that the upper end was level with the street, and in other places it protruded somewhat above this level. At intervals along the line of the work there were timbers or planks laid transversely from which were suspended chain hangers for the temporary support of the sewer and other pipes. Along the side of the trench was a ‘concrete mixer’ which apparently occupied a part of the street and extended over into the sidewalk. This structure was movable, and was changed from point to point as the work progressed. Cement, crushed stone, and sand were brought to this mixer, and after being converted into a semifluid concrete the material was taken in wheelbarrows to the trench. The sand thus delivered was evidently brought in dump carts or wagons, and deposited in such piles as would naturally form in that method of delivery. This was the general condition in Gold street on the 20th day of May, 1908, when the plaintiff was hurt. After the close of the afternoon session of the public school, he came to a place, near the school, where there was a pile of sand 3 feet or more in height, which extended over the walk about 2 feet and out into the street from 5 to 10 feet, so that the outer margin came to a point within a foot, more or less, of the trench. This was near the mixer, which was then about 30 or 40 feet from the entrance to the school. The plaintiff went to this pile where he saw another boy playing, and as he started to go home he slipped into the trench.

His own narrative is as follows: ‘I tried to get up and go home, my foot slipped, and I went down into the hole. I do not know how big this sand pile was. I went up on it and my foot slipped; my foot slipped on the sand; it caved under me and I went down with it, down into this hole.’ The only other eyewitness to the whole of the accident was a boy named Richards, who was on the sand pile with the plaintiff. This witness testified: ‘Between the side of the hole and the sidewalk, and on the sidewalk, on the day the boy was hurt, for about 10 feet there was, well, about 3 feet of sand. This sand was near the hole, about a foot and a half from it. It extended over the sidewalk, about 10 feet from it, the edges. I was on that pile of sand. When he [plaintiff] got ready to go home, he started to stand up; when he did he slid right in the hole off the sand. He was sitting down in the sand, playing. He started to get right up and slid down in the hole. There was nothing on the edge of the hole to keep anybody from sliding in.’ No witness attempts to state how long this particular pile of sand had been there, although there is a bit of testimony from which it may be inferred that the same condition had existed on the previous day. The trend of all the evidence, however, indicates that the conditions were constantly changing as the materials were...