Mullins v. Siegel-Cooper Co.

• Decision Date: 21 November 1905
• Citation: 75 N.E. 1112,183 N.Y. 129
• Parties: MULLINS v. SIEGEL-COOPER CO.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 129

75 N.E. 1112

MULLINS

v.SIEGEL-COOPER CO.

Court of Appeals of New York.

Nov. 21, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary Mullins against the Siegel-Cooper Company. From a judgment of the Appellate Division (88 N. Y. Supp. 737,95 App. Div. 234), affirming a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Gray and Haight, JJ., dissenting.

George Gordon Battle and Frederick E. Fishel, for appellant.

Warren C. Van Slyke, for respondent.

BARTLETT, J.

This is a negligence action, in which the plaintiff seeks to recover damages of the defendant corporation, the Siegel-Cooper Company. The complaint alleges that at the times involved in this action the defendant was the owner of certain premises on Broadway, near Henderson avenue, in Best New Brighton, Richmond county (Staten Island), and that the defendant occupied and used the premises as a stable for its horses and wagons. This stable building is two stories high and built out to or very near the sidewalk line. On one side of this building there is a lane upon the premises of the defendant leading to the rear, where there is another stable. At the time of the accident, March 16, 1903, the entire frontage of the defendant, including the lane in question, was occupied by a sidewalk laid with flagging stones. During the summer of 1902, some months before the accident to the plaintiff, the flagging in front of the lane became disturbed and out of position by reason of heavily-laden wagons and trucks passing back and forth over the same on entering and leaving said premises.

It is charged in the complaint that the defendant ‘negligently, carelessly, and knowingly’ permitted the said unsafe condition of the sidewalk to remain, without any effort to repair the same and make a safe passage for the public. The jury were justifled by the evidence in finding that the unsafe condition of the sidewalk consisted of one flagstone overlapping the other and raised to a height of three inches above the level of the sidewalk.

The plaintiff, a woman in middle life, testified that the accident happened between the hours of 7 and 8 o'clock in the evening, and it was dark; that when reaching the point in question she stumbled and knocked her foot against the raised flagging, and in trying to balance herself moved the other foot against it also, and she was thrown heavily to the ground, suffering a broken wrist and other injuries. She further testified as follows: ‘That flagging was a little above the center of the driveway, in the driveway. I did not see what I fell over until I fell. Then I noticed some flagging. I think it was raised somewhere about two inches above the surface of the sidewalk. Whether it was simply overlapped or not I could not tell. I was in too much pain.’ On crossexamination she testified: ‘I was not walking so rapidly; not so very briskly; my usual walk. At this place where I fell, opposite this driveway, there was no light there at all.’

The plaintiff's son was sworn, and testified that he was in the opera house, the building next door to the stable, and was summoned to assist his mother. He swore: ‘I subsequently examined the sidewalk, and I saw this flag was raised above another one at a height of about two or three inches. It was overlapping. This stone was south of the middle gate in the driveway, right opposite this driveway, on the south side. I examined the stone closely that night. It was loose. When you put your foot on it, it would give a rocking click or sound.’ This witness further testified that at the time the stable building was erected the entire sidewalk in front was considerably broken up, and a new flagging was thereafter laid in front of the stable and the lane. He further testified: ‘I remember one morning of an occasion, during the month of July, 1902, seeing a wagon loaded with stone going into this lane. I came over in that direction to take the car to go to my work, and I was walking down Broadway towards the opera house, and I was held up by a wagon crossing into that lane, a wagon filled with stone, and I saw the front wheels turn over a flagging, and I saw the flagging on the south end come down and the front end raise up. When the wagon went by, the stone fell back a little bit onto the other ahead of it. * * * I am in the vicinity every day. I noticed, whenever the wagon was going across that particular place, that when the wagon would go over it, it would raise the flag up, and it kept getting worse all the time. It got so that it would raise, I should judge, from 2 1/2 to 3 inches. * * * This particular flag was right in the wheel track. They had to go over the edge of this flag; not over the raised end, the detached end. Prior to March 16, 1903, I have seen other people stumbling over this same flag. From November up to the accident I have seen, on Wednesday and Saturday nights, maybe 25 or 30 people tripping over it.’

A witness named Kenney was sworn for the plaintiff, and testified that he was the official stenographer of the Richmond County Surrogate's Court. He swore: ‘I am familiar with the condition of the sidewalk there, and was prior to March 16, 1903, in front of the Siegel-Cooper premises. I saw a flagging on the southerly side of the driveway on the Siegel-Cooper Company's premises on Broadway extending on one end about two inches above the flag next to it; probably about the latter part of November until some time in March. I noticed it first in November; about that time-November or December. It projected on one end about two inches above the one adjoining it, the northerly side of the stone. The other side was depressed.’ On cross-examination this witness testified: ‘I noticed people tumbling over it. I had been walking along there before, sir. I had not noticed it up to that time. * * * I saw people going to basketball games tumbling over it. I noticed it right up to the very night of the accident. I am a member of the fire company there; a friend of Mr. Mullins. I am not related to him; just a friend; that is all.’

During the trial it was stipulated on the record as follows: ‘First. That the stone wall was built on the rear of the Siegel-Cooper premises during the month of June, 1902. Said period of work on the stone wall took three weeks. Second. That the work on said wall was done and was performed by contractors under contract with the Siegel-Cooper Company, the contractors furnishing the materials, teams, wagons, and employing their own workmen. Third. That during the year 1901, from the time of the building of the stable and during the year 1902, and down to the present time, Siegel-Cooper Company have sold manure to various persons under contract, providing for their carting away such manure from the Siegel-Cooper Company premises in their [the various contractors'] own wagons, drawn by their own employés; and, on an average, there was one wagon so loaded up and driven out of said premises each week.’

One Reilly was sworn as a witness for plaintiff, and testified that he was a member of the engine company in the immediatevicinity, and was also a member of the Young Men's Catholic Union, which met frequently in the opera house adjoining the stable. He testified: ‘I have seen wagons going in and out of this lane prior to March 16th. During the year of the construction of the wall in the rear of the stables of the Siegel-Cooper there were stone wagons, and also wagons loaded with cement. I have also seen some manure wagons going in out and out, and I have also seen garbage wagons.’

The defendant swore its stable manager, a hostler, and a watchman. The substance of their testimony was that after severe rains the flagging became unsettled in places and was immediately repaired. The defendant's manager testified that the flagstone opposite the driveway had been replaced by cobblestones and that they did not get out of order.

The jury rendered a verdict for the plaintiff of $1,100, and the judgment entered thereon was affirmed by a divided court; one justice dissenting. There is an abundance of evidence justifying the verdict of the jury, and it remains to determine whether there are questions of law presented by the exceptions which call for a reversal of the judgment of the Appellate Division. At the close of the plaintiff's case the defendant moved to dismiss the complaint upon the ground that the plaintiff had failed to show that the defendant had been guilty of any negligence; also upon the ground that the plaintiff had failed to show that the defendant had been guilty of any negligence by which the injuries sustained by the plaintiff were caused; that the plaintiff has failed to show that the plaintiff herself was free from contributory negligence; that it appears from the testimony that the wagons which passed over this driveway were wagons of independent contractors, except empty wagons of the Siegel-Cooper Company, which were being pushed in, and the plaintiff has not proved, nor has there been any attempt to prove, that these wagons of the Siegel-Cooper Copany in any wise caused the irregularity in the flagstone, and therefore the defendant is not responsible for this condition of the pavement. The trial judge denied this motion,...