Spencer v. State
| Citation | 187 N.Y. 484,80 N.E. 375 |
| Parties | SPENCER v. STATE. |
| Decision Date | 26 February 1907 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by Anthony Spencer against the state of New York. From a judgment of the Appellate Division (97 N. Y. Supp. 154,110 App. Div. 585), affirming by a divided court a judgment of the Court of Claims awarding plaintiff damages for personal injuries, the state appeals. Affirmed.
Julius M. Mayer, Atty. Gen. (G. P. Decker and Willis H. Tennant, of counsel), for the State.
H. G. Pierce, for respondent.
While plaintiff was at work for defendant around one of its canal bridges, in the city of Rochester, he was struck and injured by a plank which was thrown down upon him from the elevated bridge by one Patterson, who was a bridge tender, and for the damages resulting from such injuries he has recovered judgment.
It is urged in behalf of the appellant that at the time Patterson injured the respondent he was engaged in an enterprise of his own, and was not in any degree whatever acting within the scope of his employment so as to render the state liable for his misconduct, and that, therefore, the plaintiff should have been nonsuited upon the trial. We think that there would be great force in this contention if the appellant were in position to make it; but as the case is presented upon appeal this question is not available.
If the appellant's contention is correct, then there was no evidence upon which the Court of Claims could render judgment in favor of the plaintiff, and his complaint should have been dismissed as a matter of law upon a motion for a nonsuit. Such motion was duly made at the close of the plaintiff's case and denied. Defendant then proceeded to offer evidenceupon its behalf, and at the close of all of the evidence the motion for a nonsuit was not renewed, but the case was submitted to the court for consideration, and thereafter what amount to findings of fact were made and judgment rendered. In fact, the request made at the close of all the evidence by the Deputy Attorney General, that the court should ‘find that it was no part of Mr. Patterson's duty to be on this bridge and he was not in any sense acting as the officer, agent or servant of the state in doing what he did do that caused the injury,’ seems almost to imply the idea of a question of fact to be passed upon. Certainly it was not fairly a motion for a nonsuit, and no ruling was made, and consequently no exception taken which would enable this court to pass upon the rights of the defendant as they then stood.
It is well settled that upon a trial the defendant may supply deficiencies in plaintiff's proof, and that in courts of record at least the failure to renew or make a motion for a nonsuit at the close of all of the evidence will be regarded as an admission that there is some question of fact to be passed upon and a waiver of the right to have the complaint and case dismissed as a matter of law. Jones v. Union Ry. Co., 18 App. Div. 267,46 N. Y. Supp. 321;Griffith v. Staten Island R. T. R. R. Co., 89 Hun, 141, 36 N. Y. Supp. 157;Hobson v. N. Y. Condensed Milk Co., 25 App. Div. 111,49 N. Y. Supp. 209; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628. The...
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