Weitzmann v. A.L. Barber Asphalt Co.

• Decision Date: 07 January 1908
• Citation: 83 N.E. 477,190 N.Y. 452
• Parties: WEITZMANN v. A. L. BARBER ASPHALT CO.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 452

83 N.E. 477

WEITZMANN

v.A. L. BARBER ASPHALT CO.

Court of Appeals of New York.

Jan. 7, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frank C. Weitzmann, Jr., by Frank C. Weitzmann, his guarandian ad litem, against the A. L. Barber Asphalt Company for personal injury. Appeal by defendant, by permission, from a judgment of the Appellate Division, Second Department (120 App. Div. 896,105 N. Y. S. 1149), affirming a judgment for plaintiff. Reversed, and new trial ordered.

On June 15, 1906, the plaintiff, a boy then between 11 and 12 years of age, was playing upon a pontoon or float moored to the shore in front of premises leased by the defendant. While thus engaged the plaintiff was seriously injured, and this action was subsequently brought to recover the damages which are said to have been occasioned by the culpable negligence of the defendant.

The defendant is engaged in the manufacture of asphalt and in that business it leased from one Brady certain premises at Stapleton, Staten Island, fronting on the waters of New York Bay. These premises are situate between Prospect street on the north and Wave street on the south. At Prospect street, adjacent to the shore, the defendant had erected a hoist about 30 feet high, from the top of which a wire cable was suspended, which ran from the hoist on an incline towards Wave street. This hoist was equipped with a device called a carrier. Barrels were attached to this carrier by means of tongs that hung from the cable, and were thus conveyed from the top of the hoist down the incline to what was called the dump at Wave street. This cable at places in its course passed over the shallow water bordering on the irregular shore, and when it reached the dump was about three or four feet from the ground. The hoist was not constantly in use. It was being used at the time when the plaintiff was playing upon the pontoon as stated. Just as a barrel had been projected down the wire hoist, the plaintiff raised his head above the level of the pontoon, and was struck with such force as to cause a serious fracture of the skull. The float or pontoon on which the plaintiff was playing when he was struck by the barrel lay a few feet below high-water mark adjacent to the premises in question near Wave street. It was between 25 and 30 feet in length, 15 feet wide and about 6 feet deep. At high tide it was surrounded by about 5 feet of water. At extreme low tide it was high and dry. The combined weight of the barrel and the carrier was between 300 and 325 pounds, and caused the cable to sag so that the barrel was low enough to strike the plaintiff's head when he raised it above the top of the float. It is not clear from the record just how the plaintiff reached this float. The defendant's evidence was to the effect that the approach was piled up with barrels and cans over which it was necessary for the plaintiff to climb in getting to the float. The plaintiff's evidence tended to show that he crossed a continuation of Sand street, which terminates at the water's edge just about where the float was moored; that there was a traveled way there between 12 and 15 feet wide, passing Brady's barn to a dock, from which there was a plank that extended to the float. The record indicates that the plaintiff and some other boys had been upon and about this float on the day prior to the accident and had observed some fish there. On the day of the accident the plaintiff went there with two boy companions, and was struck as stated. He had seen the cable and barrels passing over it. The plaintiff's father had seen boys playing about the float on several occasions prior to the accident. He said that he had observed this cable and the barrels passing over it, but that the place had bot impressed him as being dangerous; that at extreme low tide the barrels would pass about 5 or 6 feet above the float, and that the distance varied with the tide. Other evidence tended to show that when boys were on the float they were in plain sight of the men on the hoist engaged in sending the barrels over the cable. There was also evidence tending to show that the defendant employed a watchman to keep away from the premises persons who were not employed there. The place where the float was moored is designated as Front street, which runs along the shore of the premises in question. Although called Front street, it was covered with water at high tide. The defendant's lessor, Brady, testifying as a witness for the defendant, disclaimed any ownership of the land under water at the place where the float lay.Frank V. Johnson, for appellant.

George M. Pinney, Jr., for respondent.

WERNER, J. (after stating the facts as above).

There are two questions in this case which survive the unanimous affirmance of the judgment entered upon the verdict, and they arise upon exceptions taken to the charge of the learned trial court in submitting the case to the jury. The charge, so far as material to the questions thus raised, was as follows: ‘Now, if a person's premises under ordinary circumstances, are so situated that a person walks upon them and there is a dangerous part of them-a hole for instance, or anything of that kind-and he falls into it, he being at the time a trespasser, going there without permission, the owner of the premises is not liable for anything. If in this particular instance the boy had fallen into the hole of that pontoon or float, the defendant in this action would not be liable at all, because that would be a danger that a person going upon the premises...