Sanford v. White

• Decision Date: 10 October 1904
• Citation: 132 F. 531
• Parties: SANFORD v. WHITE.
• Court: U.S. District Court — Southern District of New York

132 F. 531

SANFORD v. WHITE.

United States Circuit Court, S.D. New York.

October 10, 1904

Sheldon & Gwynn (Samuel Norris, Jr., of counsel), for complainant.

Sheehan & Collin (Thos. L. Hughes and Chas. C. Clark, of counsel) for defendant.

RAY District Judge.

On the 3d day of December, 1891, in the city of Pawtucket, state of Rhode Island, the defendant, White, as contractor or subcontractor, was engaged in the construction of an electrical car line on Lonsdale and Mineral Spring avenues public streets of said city, at or near their intersection. The construction of this car line had been authorized by the proper authorities, but the manner and means of doing the work were not specified. In doing the work the defendant stretched a guy rope wholly or partly across both avenues drawn taut and fastened at both ends, in such a manner and at such a height and angle at one end that travelers in vehicles, passing along such avenues, in the traveled part thereof, were liable to be caught by such rope and thrown from their vehicle and injured. This rope, so drawn and fastened, was left by the defendant after dark entirely unguarded and unlighted, so that travelers upon these avenues had no notice or warning of this dangerous obstruction to travel in these public streets of the city of Pawtucket. These avenues were not closed to public travel, and no notice in any form was given that they were unsafe or obstructed. In the evening of the day in question, and after dark, the complainant, with his son, was lawfully passing along Lonsdale avenue, as he claims, in a vehicle drawn by a horse when without warning and without fault on his part, or that of his son, he was caught under the chin of this rope, thrown violently to the ground, and, it is claimed, seriously and permanently injured.

The complainant brought suit against the city of Pawtucket, but was defeated on the ground that by reason of its relations to the railroad company and the contractor it (the city) was not liable; that the contractor or railroad company was the one to respond. Action was then brought in the Circuit Court of the Southern District of New York, on the law side, by the complainant, against said White and others, to recover the damages alleged to have been sustained on the occasion in question. That action, commenced in October, 1897, was not tried until February 7, 1900. The complainant's attorney of record, Mr. T--, resided in the city of New York; but the complainant had employed counsel, one Mr. J--, familiar with all the facts, residing in the state of Rhode Island near the scene of the accident. The complainant had a disinterested witness by whom he could have proved the facts that this rope was stretched across Lonsdale avenue south of its intersection with Mineral Spring avenue, and at such a height and angle that persons riding along that avenue on its westerly side would come in contract with it, and that same at the time of the accident in question, and after dark, was left unlighted and unguarded by the defendant, and that the street was not closed. This witness would also have testified to the accident, and to the fact that his complainant, after dark, about 5 p.m., came in contact with the rope and was thrown from his wagon and injured. It was an undisputed fact that no work was being done at the time the plaintiff was injured, work having ceased for the day, and that this rope had been placed there at about 2 o'clock p.m. of the day in question. At least, the complainant had a witness to prove those facts, who was not called. Clearly it was unnecessary to leave the rope in that place and position during the night. But the defendant was in the streets constructing the railroad with the consent of the proper authorities. This fact is not questioned.

It seems to be conceded by the defendant that if the guy rope was fastened in and across Lonsdale avenue south of the intersection of the avenues, and c complainant was caught and injured there, the obstruction was unauthorized, and constituted a nuisance, and that the complainant might recover. But there was a conflict of evidence as to the location of the rope, and as to the point where the accident occurred, and the question was submitted to the jury, who found in favor of the defendant. Prior to the trial the following stipulation was entered into and signed by the attorneys for the respective parties:

'Whereas, the plaintiff in the above-entitled action complains of an injury which he received on the 3d day of December, 1891, on Lonsdale and Mineral Spring avenue, in the town of Pawtucket, Rhode Island, by reason of a certain guy rope, tower, and other appliances being placed in said avenues; and whereas, the parties hereto desire to facilitate the proof that such guy rope, tower, and other appliances were in every particular proper and necessary for the overhead trolley construction work to be performed at that place, and that they were used in the proper manner; therefore,

'It is hereby stipulated by and between the parties to the above-entitled action: (1) That said tower, guy rope, and other appliances were the same as were generally in use on the 3d day of December, 1891, for that kind of work. (2) That the method in which the work was performed was the usual

and customary way of doing that kind of work. (3) That there were no other methods or appliances for doing that kind of work in use on the 3d day of December, 1891. (4) That the said guy rope was maintained in position across said avenue no longer than was necessary in the erection of the poles and wires of said railroad. (5) That this stipulation may be read as evidence on the trial of the above-entitled action as full proof of the matters set forth in paragraphs Nos. 1, 2, 3, and 4 as above.

'Dated January 9, 1900.'

It is evident that this stipulation, with its recitations and preamble, ought not to have been made; that when read to the jury, as in this case, and commented on in their presence without being in any manner limited or explained, it was decisive of the case in favor of the defendant. The purpose of the stipulation was to establish (so the attorneys for both parties, by the recitations, say) that 'such guy rope (and this means the rope placed as it was and where it was), tower, and other appliances were in every particular proper and necessary for the overhead trolley construction work to be performed at that place, and that they were used in the proper manner. ' If this was all true, then the complainant had no cause of action; the defendant was not a trespasser. The attention of the jury was not called to the point that, if the guy rope was extended across and fastened in the southerly extension of Lonsdale avenue, then the defendant was a trespasser in placing the obstruction (the guy...