Tierney v. New York Dugan Bros., Inc.

• Decision Date: 18 March 1942
• Citation: 41 N.E.2d 161,288 N.Y. 16
• Parties: TIERNEY et al. v. NEW YORK DUGAN BROS., Inc.
• Court: New York Court of Appeals Court of Appeals

288 N.Y. 16

41 N.E.2d 161

TIERNEY et al.

v.NEW YORK DUGAN BROS., Inc.

Court of Appeals of New York.

March 18, 1942.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James Tierney, Jr., by James Tierney, his guardian ad litem, and by James Tierney against New York Dugan Brothers, Inc., to recover damages for personal injuries sustained by James Tierney, Jr., and to recover for expenses and loss of services of James Tierney, Jr., by his father James Tierney. From a judgment entered upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department reversing on the law and the facts a judgment in favor of plaintiff entered upon a verdict rendered at trial term, Hallinan, J., and directing a dismissal of the complaint of the law, 260 App.Div. 882, 22 N.Y.S.2d 874, and after a motion for reargument was denied, 260 App.Div. 933, 24 N.Y.S.2d 129, plaintiff appealed to the Court of Appeals where a motion to dismiss the appeal was denied, 285 N.Y. 609, 33 N.E.2d 543.

Reversed and new trial granted.

LEWIS and FINCH, JJ., dissenting. Charles Gold, Lawrence Isaacs, and Joseph E. Weil, all of New York City, for appellants.

George J. Stacy and Paul L. Murphy, both of New York City, for respondent.

CONWAY, Judge.

The plaintiff, a child of five years of age, suing through his guardian ad litem, and his father had jury verdicts for personal injuries and loss of services. The Appellate Division reversed upon the law and the facts and dismissed the complaint upon the law.

The defendant was making deliveries upon one of the streets in the county of Queens in June. Its electric truck had a platform about nine inches above the sidewalk and one could enter upon the platform from either side of the vehicle. There was a sliding door on each side which could be closed and locked. They were closed and locked in cold but not in warm weather. There was no driver's seat. There were, among others, two mechanical devices installed which were operable from the platform. Those were a safety switch and a power lever. There was a key for locking the safety switch. In order to start the car it was necessary to turn the safety switch and push the power lever. Both those devices were manipulated very easily.

The driver testified that he parked the truck, threw off the power, applied the emergency brake and turned off the switch. He left both sliding doors opened and unlocked. He left the safety switch unlocked. He did not have a key to lock it. Without a key, there might as well have been no safety switch. Had either the doors been closed and locked or the safety switch locked, it would have been impossible to put the truck in motion.

As the driver left the car, in order to make a delivery, he testified that he saw three children, of whom the infant plaintiff was one, ‘right at the truck ready to get into it’ and that he warned them not to enter it. He also testified that children generally were in the habit of playing in and about the car.

He left it so parked that, when he went to the house where he was to make a delivery, he could not see the platform with the instruments but only the rear portion of the truck.

The infant plaintiff and the other two children played in and about the truck. They set it in motion. It began to move diagonally across the street under power, but slowly, since the emergency brake was set. Two of the children jumped off. The infant plaintiff hung on to the side door and then fell or jumped and was injured when caught between the truck and curb.

We think it was a question of fact for a jury as to whether or not defendant exercised ordinary prudence under the circumstances. ‘Among the members of the public to whom the duty of care was owing were children playing on the street, since their proclivities as matter of common knowledge might draw them to such objects in the course of play. Earl v. Crouch, 57 Hun 586, 10 N.Y.S. 882; Id., 61 Hun 624, 16 N.Y.S. 770, affirmed, Earl v. Cronck, 131 N.Y. 613, 30 N.E. 864;Kunz v. City of Troy, 104 N.Y. 344, 10 N.E. 442,58 Am.Rep. 508;Long v. City of Dunkirk, 260 N.Y. 599, 184 N.E. 109; cf. Restatement of the Law of Torts, s 302, subd. m.’ Boylhart v. Di Marco & Reimann, Inc., 270 N.Y. 217, 221, 200 N.E. 793, 794 (Crouch, J.). In that instance the objects were steel beams piled insecurely in the highway.

A dangerous attraction in a public highway may impose liability to a child on the part of the one responsible therefor, because of failure to exercise due care although there would be no liability if the attraction were upon private premises where the child had no right to go. In the instance presented here the defendant, in connection with its business, was practically using the sidewalk as a part of its automobile platform. For the distinction indicated, see Walsh v. Fitchburg R. R. Co., 145 N.Y. 301, at pages 311, 312,39 N.E. 1068, 27 L.R.A. 724, 45 Am.St.Rep. 615; Note on Attractive Nuisances, subdivision Attractions in Highways, 36 A.L.R. 34, at page 148 et seq.; Negle v. New York Edison Co., 281 N.Y. 727, 23 N.E.2d 547 (tool cart left at night in a ‘play street’ in New York city); Morse v. Buffalo Tank Corp., 280 N.Y. 110, at page 118, 19 N.E.2d 981 (Finch, J.); Long v. City of Dunkirk, supra.

It was the duty of the operator of the motor vehicle involved here, when he permitted it to be unattended, to leave it in such condition that it could not be put in motion except by the intervention of an external cause not to be anticipated or guarded against. Maloney v. Kaplan, 233 N.Y. 426, 430, 135 N.E. 838, 840, 26 A.L.R. 909. In that case, as was pointed out in the opinion, there was no unusual situation presented ‘where the danger was apparent of interference by little children indulging in their natural instincts of play (Lynch v. Nurdin, 1 Adol. & El., N.S., 29; Walsh v. Fitchburg R. R. Co., 145 N.Y. 301, 39 N.E. 1068, 27 L.R.A. 724, 45 Am.St.Rep. 615), or by meddlesome or mischievous boys (Luedeke v. New York C. & H. R. R. R. Co., supra (164 App.Div. 104, 149 N.Y.S. 525)).’ Here a jury might say that there was and that is the determining factor distinguishing from the instant one the cases of Thibodeau v. Gerosa Haulage & Warehouse Corp., 252 App.Div. 615, 300 N.Y.S. 686, affirmed 278 N.Y. 551, 16 N.E.2d 98, and Mann v. Parshall, 229 App. Div. 366, 241 N.Y.S. 673.

In Connell v. Berland, 223 App.Div. 234, 228 N.Y.S. 20 (Finch, J.), affirme...