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Second Department, October, 1911.

[Vol. 146. enumeration is not shown directly, except in a general way by the testimony of Herbison. This testimony is so brief that I do not quote from it. That the jury was entitled to pass upon the question of Gienty's knowledge, under the particular circumstances of the case, I think is clear. So do I think that the record is not such as to justify any interference by this court with the finding of the jury on this point. The next point to which the appellant devotes considerable attention arises upon the pleadings. This action has been at issue six years, twice tried, once in the Court of Appeals, and this question of pleading has been ignored by the defense until the second trial. It arises in this way: The plaintiff sued as beneficiary designated in the membership certificate. He was mistaken in this claim, for the designated beneficiary was his wife, the mother of the member, who had died before the member. The defendant answered, setting up the true name of the designated beneficiary. The plaintiff, instead of serving an amended complaint, served a reply, in which he alleged the death of his wife before that of the son, and likewise alleged that he was the only person entitled to benefit under the son's membership certificate. The defendant retained this reply, and the plaintiff claims that it should be considered as an amplification of the complaint. There can be no substantial question of the plaintiff being the sole person entitled to recover on this membership certificate. There was no existing designated beneficiary at the time of the son's death. He died without wife or issue. He left a father and some brothers and sisters. His father, however, was his only “heir at law” or next of kin. The charter of the defendant provided that under such circumstances the money should go to the member's "heir at law,” which in this case was the father alone. The defendant claims, however, that, under sections 38 and 78 of its constitution, its board of directors has the sole power of designating the recipient of the benefit where a designated beneficiary has died and the member has made no other designation. But both of these provisions of the constitution expressly declare that such designation shall not be in conflict with the charter of the corporation. As the father was the only “heir at law” of the deceased member the charter gave

App. Div.] Second Departinent, October, 1911. him an absolute right to the benefit, in the absence of an existing designation of beneficiary made by the member. Hence no designation could be made by the board of directors which could change this charter right. Under these circumstances all the discussion in the appellant's brief as to the form of the pleadings is merely technical.

The judgment and order must be affirmed, with costs.

JENKS, P. J., THOMAS, WOODWARD and Rich, JJ., concurred.

Judgment and order affirmed, with costs.

MICHAEL GOLDBERG, by SAMUEL GOLDBERG, His Guardian ad

Litem, Appellant, v. JAMES GRAHAM, Respondent.

Second Department, October 27, 1911.

Negligence - infant - contributory negligence of parents — question

for jury — failure to warn child as to particular danger.

It is not negligence, as a matter of law, to permit a child of six years of

age to be upon the streets and sidewalks of a city. Nor is it a parent's duty, as a matter of law, to warn such a child of dan

gerous places in the neighborhood before permitting him to play on the

street. In an action by a child six years old to recover for personal injuries received by falling into an excavation on defendant's property which had been left unguarded for four years, in violation of a municipal ordinance, it is error to dismiss the complaint at the close of plaintiff's case upon the ground that, as plaintiff's father had failed to warn him of the danger of falling into this particular excavation, he could not

recover. It is for the jury to say whether under all the facts and circumstances the

conduct of the parents in any given case constitutes reasonable care.

APPEAL by the plaintiff, Michael Goldberg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of January, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case upon a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the 31st day of December, 1910, denying the plaintiff's motion for a new trial made upon the minutes.

[Vol. 146.

Second Department, October, 1911. Alfred D. Lind [John L. Bernstein with him on the brief], for the appellant.

Richard Krause, for the respordent. WOODWARD, J.:

The infant plaintiff in this action fell into an unguarded building excavation on Coney Island avenue, borough of Brooklyn, in November, 1907, being at that time about six years of age, and sustained injuries for which he seeks to hold the defendant, as the owner of the premises, liable. Section 22, chapter 15 of the Code of Ordinances of the city of New York, part 5, provides that “All excavations for buildings shall be properly guarded and protected so as to prevent the same from becoming dangerous to life or limb.” The evidence in this case shows that the excavation where the plaintiff was injured had been dug some four years before the accident, and had remained unguarded during that time; that the excavation was upon the building line, open to the street, and about four inches below the sidewalk level, so that it was open to the very danger which the ordinance was intended to guard against

, and there was clearly a question for the jury as to the defendant's negligence. This was held by the learned trial justice, but the complaint was dismissed upon the ground that the plaintiff's father had failed to warn him of the danger of falling into this particular excavation, which was three houses removed from the plaintiff's home. On defendant's motion to dismiss, the learned trial justice stated that “While it is true that it is not necessarily negligence to let a child go out in the street, if there is no other place for him to play,

* It ought to appear at least that the child had been enjoined against playing in this dangerous place, and it does not appear that any such injunction had been ever laid upon him; and if not I am disposed to say that the case fails in the proof absence of negligence on the part of the father, who would seem to have neglected the patent duty to enjoin the child when he went into the street to keep away from this dangerous place,” and it appears from the record that it was upon this theory that the complaint was dismissed.

And here we find the leamed trial justice asserting his

App. Div.] Second Department, October, 1911. own conception of parental duty, and determining a question of fact as one of law, when obviously intelligent and welldisposed men might differ upon the question. It has been held so many times that it is useless to cite authorities that it is not negligence, as a matter of law, to permit children to be upon the streets and sidewalks of cities, and this has been asserted even of children younger than the plaintiff. (McGarry v. Loomis, 63 N. Y. 104, 107.) If it is not a question of law, then it follows that it is a question of fact, to be determined by all of the facts and circumstances of the particular case, and when facts and circumstances enter into the determination, it is for the jury to consider them, not for the court. To say, as a matter of law, that it is the duty of a parent, every time a child goes out upon the street, to go over each dangerous situation each likely source of danger -- and to warn the child against such danger or even that it is the parental duty to give such warning of dangerous places at any time, is to exact a degree of care entirely inconsistent with the complex society in which we live, and it is not the law. This particular excavation had been there for four years; this child had been in the habit of playing in the street for a year or more, and no accident had resulted to him, though he may have have been in the presence of hundreds of situations equally or more dangerous, and the jury might have found that the child, who appeared and testified, was capable of taking care of himself under ordinary circumstances, and that it was not negligent in the parents to permit him to play upon the street without a special warning as to this particular danger. The fair question to be determined is not as to a particular danger, after the accident has happened, but whether under all of the facts and circumstances the conduct of the parents constituted reasonable care.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

JENKS, P. J., BURR, THOMAS and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

Second Department, October, 1911.

[Vol. 146.

MATTHEW LENDGREN, Appellant, v. THE ERIE RAILROAD

COMPANY, Respondent.

Second Department, October 27, 1911.

Railroad

master and servant - negligence – evidence - injury to

switchman in railroad yard — appeal.

Upon an appeal from a nonsuit plaintiff is entitled to the most favorable

view of the evidence. In an action by a switchman to recover for personal injuries received while

working in a railroad yard the mere fact that one of the switches had been changed and that there were irons, etc., scattered about the premises at the time of the accident, is not evidence of negligence on the part of the railroad. It must appear that there was a defect of some kind at the place where the accident occurred and that such defect was the cause

of the injuries. Evidence in an action by a switchman in a railroad yard to recover for

injuries received by being run over by a locomotive examined, and held, that a judgment entered upon the dismissal of the complaint at the close of plaintiff's case should be affirmed.

APPEAL by the plaintiff, Matthew Lendgren, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the 25th day of March, 1911, denying the plaintiff's motion for leave to submit the facts to the jury and for a new trial made upon the minutes.

John F. McIntyre [Joseph A. Shay and Edward Weiss with him on the brief], for the appellant.

Frederic B. Jennings [William C. Cannon with him on the brief], for the respondent. WOODWARD, J.:

The plaintiff was nonsuited, and upon this appeal is entitled to have the evidence regarded in its best aspects. The plaintiff pleaded a cause of action under the Employers' Liability Act of the State of New Jersey, which is substantially like our

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