Schintzuis v. Lackawanna Steel Co.

• Decision Date: 12 July 1918
• Citation: Schintzuis v. Lackawanna Steel Co., 224 N.Y. 226, 120 N.E. 137 (N.Y. 1918)
• Court: New York Court of Appeals Court of Appeals
• Parties: FEDORA SCHINTZUIS, as Administratrix of the Estate of GASTON SCHINTZUIS, Deceased, Respondent, v. LACKAWANNA STEEL COMPANY, Appellant.

224 N.Y. 226

120 N.E. 137

SCHINTZUIS

v.LACKAWANNA STEEL CO.

Court of Appeals of New York.

July 12, 1918.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Fedora Schintzuis, as administratrix of the estate of Gaston Schintzuis, deceased, against the Lackawanna Steel Company. From a judgment of the Fourth Appellate Division (173 App. Div. 955,159 N. Y. Supp. 1140), sustaining plaintiff's exceptions taken on trial at a Trial Term held in Erie county, and granting new trial, defendant appeals. Order of the Appellate Division reversed, and judgment directed to be entered, dismissing the complaint on plaintiff's motion for nonsuit instead of on the verdict directed by the court.

H. W. Huntington, of Buffalo, for appellant.

Hamilton Ward, of Buffalo, for respondent.

HISCOCK, C. J.

This action was brought to recover damages sustained by reason of intestate's death, which was alleged to have been caused by the negligence of defendant.

The defendant operated several blast furnaces by the processes of which there was produced a large amount of carbon monoxide gas, which in its natural state was both odorless and colorless, and which was fatal to a human being when inhaled in very small quantities. The intestate was in the employ of defendant, and was found dead in a trench beneath a toilet house, situate on its premises in which he had been seen in an apparently healthy condition a short time before he was discovered dead. It was and is claimed by plaintiff that because of the negligence of defendant in not adopting proper preventive means, gas of the character mentioned had been carried to the place where intestate was, rendering him unconscious, and causing him to fall into the trench where he was found, breaking his neck.

On the trial of the case defendant made a motion for a nonsuit at the close of plaintiff's case, but requested that the decision of this motion be held in abeyance until all of the evidence had been submitted. The plaintiff, on the contrary, urged that the motion should be decided forthwith. The court complied with the request of the defendant, and received its evidence without passing on the motion. At the close of all of the evidence the defendant made a motion that a verdict be directed in its favor, and without deciding the motion which had been made for a nonsuit, the trial judge ultimately granted defendant's latter motion. Before this action was taken, however, counsel for the plaintiff requested that he be permitted to reopen his case and produce more evidence, that he be permitted to withdraw a juror, and also that he be permitted to submit to a voluntary nonsuit. While this last request was not made as clearly or as singly as it might have been, but was somewhat combined with the other requests referred to, still we think that we are entitled to hold, from all of the proceedings taking place at the close of the evidence, that the trial court understood that this motion for a voluntary nonsuit had been made, and denied it on the theory that it was belated because the case had already been submitted to him upon the other motions which were made, and that plaintiff took an exception to the decision thus made, as well as to the direction of a verdict.

[1] Plaintiff's exceptions were ordered to be heard in the first instance at the Appellate Division, and entry of judgment was in the meantime suspended. The Appellante Division thought that there was evidence which required the plaintiff's case to be submitted to the jury. That court, however, although reversing the action of the lower court, did not deem it necessary to write any opinion, and therefore we have not the advantage of its views, pointing out where the evidence was found which entitled the plaintiff to go to the jury. While the case may be a close one in this respect, we have been unable to find any evidence which would have permitted the jury to find that intestate's death was caused by an inhalation of the gas in question, resulting from any negligence of the defendant. We think that a verdict to that effect would have been based upon speculation and conjecture rather than upon any proof which is found in the record. Therefore in this respect and upon the merits we adopt the view of the trial court rather than that of the Appellate Division.

[2][3] We think, however, that the trial court committed an error which entitles the plaintiff to relief from the direction of a verdict dismissing her complaint, and from the judgment which would otherwise be entered thereon. She is, of course, entitled to urge upon this appeal any exception which sustains in whole or in part the action of the Appellate Division in reversing the action of the trial court. As we have already pointed out, the plaintiff's counsel at the close of all of the evidence, probably becoming distrustful...