Newall v. Bartlett

• Decision Date: 04 June 1889
• Citation: 114 N.Y. 399,21 N.E. 990
• Parties: NEWALL v. BARTLETT et al.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 399

21 N.E. 990

NEWALL

v.BARTLETT et al.¹

Court of Appeals of New York, Second Division.

June 4, 1889.

Action by James H. Newall against Edward B. Bartlett and others, to recover damages for personal injuries alleged to have been caused by defendants' negligence. Verdict and judgment for plaintiff, and defendants appeal.

Goodrich, Deady & Platt, for appellants.

Nelson Smith, for respondent.

POTTER, J.

This is an appeal from the judgment of the general term of the superior court of the city of New York, affirming a judgment rendered upon the verdict of a jury in favor of the plaintiff, and from an order of the trial court denying a motion to set aside the verdict, and for a new trial. The action was brought to recover damages for the injuries which the plaintiff alleged he had received to his person through the negligence of the defendants, by the falling of a gate or door upon the pier or wharf in the possession and under the control of the defendants. The first three sections of the complaint were admitted by the answer, and the facts thus admitted were substantially these: That, from the 1st day of May down to the time plaintiff was hurt, which was September 29, 1882, the above-named defendants and John K. Bartlett, who died after the action was commenced, were copartners in business under the firm name of ‘E. B. Bartlett & Co.,’ and were warehousemen. They were in possession of the premises known as ‘Roberts' Stores,’ consisting of six stores and the pier or wharf connected with them, on the east side of East river, between Fulton and Wall streets, in the city of Brooklyn. The pier or wharf was about 65 feet wide, and extended into East river about 350 feet. It was inclosed on the northerly and southerly sides and westerly end, and roofed, and had doors or gates about 11 feet high and 10 feet wide, forming openings into or through the south side of the structure or building. That by the consent of defendants' firm, including John K. Bartlett, deceased, as a partner, the steam-ship Valencia, upon her arrival from Venezuela on September 29, 1882, came and made fast to defendants' pier, and landed passengers and discharged her cargo. That such landing was pursuant to an understanding between defendants' said firm and the owners of said steam-ship, or of her cargo, or some part of it. It was proved, in addition to the facts admitted, that the plaintiff on the 29th of September, 1882, was employed by the master and owners upon the steam-ship Valencia, and was on board of said ship when she arrived and made fast to this dock as aforesaid. It was made fast to the south side of this dock, and the plaintiff, in the performance of his duty as an employé on board of said ship, was assisting in carrying a small trunk of baggage from the vessel onto this pier, and within the inclosure where the baggage of the passengers was being deposited; that he went through one of the open door-ways with this trunk upon his shoulder, and when he had reached the inside of the structure through one of the doorways, and in setting down the trunk, one of the doors to these openings on the south side of the pier fell over and struck him on his back and side, and, it is alleged, injured him very seriously. The plaintiff also made proof tending to show that defendants had notice of the dangerous character of these doors; that they had fallen-some of them-before, and one employé of defendants, engaged upon the wharf, said to John K. Bartlett, one of the partners, since deceased, that unless these fastenings were repaired somebody would get killed. The plaintiff gave proof tending to show the extent and character of his injuries, and the jury rendered a verdict in his favor for $2,000 damages. The defendants gave evidence tending to show that these doors or gates were suspended by a cross-piece at the top of the opening, on which was laid a rod of iron as a rail, and upon which ran wheels with curved rims made fast to the top of the door, and by this means the doors were closed or slid back, and thus made openings in the side of the building. The defendants also gave evidence tending to show that the defendants own men and employés did not open the doors upon this occasion, but that some were opened by the employés on the steamer, or by the stevedore, or some of his men, in the employment of the steamer; that the door was thrown off the rod...