Cleary v. Blake

14 A.D. 602, 43 N.Y.S. 1115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1897
• Status: Published

Opinions

Willard Bartlett, J.:

The plaintiff’s son, a school boy, between six and seven years of age, was killed on the 14th day of October, 1895, by falling through a door which opened, into a-cellar at Public School No. 107 in the city of Brooklyn, out of an alleyway leading from the street into the school yard. This alleyway was used by the school children in large numbers on their way into the school and out. The deceased lad, Christopher H. Cleary, with a crowd. of his fellow pupils, was returning to his class, room after the recess for dinner on the day of the accident, when he went over to an iron grating which was in front of the cellar door already mentioned, and in some manner leaned or placed his back against it, so that the door opened and he fell into the cellar, receiving injuries which resulted in his death a few hours later.

At this time the firm of Blake & Williams, composed of the defendants, were engaged as steam fitters in fulfilling a contract with the board of education to do certain work upon Public School No. 107. In the course of the work their employees had occasion to use the cellar, and on the morning of the day when the accident occurred they had opened the door, through which the boy afterward fell, for the purpose of removing a pulley. The door had then been apparently closed, but not so securely as to prevent it from being pressed open as it was when the lad fell through. Neither of the defendants was present, but they have been held liable for the death of the plaintiff’s son, on the ground that their workmen in the course of them employment at the school were guilty of negligence in omitting properly to close and secure the door under the circumstances.

One of th'ese workmen, named Thomas Foley, who was called .as, a witness by the plaintiff, gave the only, definite and specific testimony as to the manner of closing the doo:r when it was last closed before the accident: ■ He said that he latched and bolted onedialf, and continued : “ Mir. Corwin, my foreman, called me for something,' and I said, ‘All right, sir,’ and turned off to do it/.and just as I did, I slammed the door. I heard the latch click on the door. Q. You just slammed it and went away? A. Yes, sir; and I heard the latch click. Q. You heard a click? A.: Yes, sir. Q. Yoii heard some little click in the lock ? A. Yes, sir. Q. And you never paid any more attention after that ? A. He ver paid' any more attention. Then I went away. Between the time I closed the door and the time of the accident I did not see anybody touch the door, go to the door. * * * I could see any person walk, towards -the door if they went to wards it.. I didn’t see. any one walk towards it.”

The foreman, to .whom this witness referred, testified that, he told Fojey to close the door,-but did not think he told him to; look it. The foreman also stated that he then saw Foley go over to the doorway and close half of it, but he did not see what he did with the other half. Foley himself swore, that the foreman had never told him to lock the door, and that there was no key in the door when he closed it. ;

If these witnesses, or either of them, had had any reason- to expect that the door in question was likely to prove a trap for school children .unless securely, fastened, it. might well be held that the foregoing evidence was sufficient to charge them and-, therefore, their employers with negligence. I am unable, however, to -find anything in this record to show that they were-aware of the danger .to which the unsecured door might expose the children using the alley,or passage on their way to and from school. It does not appear that .any of the defendants’ workmen had ever seen' the alley crowded with children, as it seems to have -been on the occasion of the .accident, -or that they had any knowledge or -information that the passageway was liable to be so tised as to lead to pressure against the door from without by the passing pupils. The men. were.'eating their dinner in the cellar when the accident occurred, and were not in a position to see the incoming children at that time. 1 If they could reasonably have anticipated that a boy would stop and lean . or press against this door, common prudence, required that they should see to it that the door was not left so slightly fastened as readily to open and permit one to he thrown to the cellar floor, which was several feet below the level of the alley; but, in the absence of any observation, experience or warning to suggest such a possibility, it seems to me that it would be laying down a very stringent rule of liability to hold that they were in duty bound to guard against it. To assume that the door was securely closed because he heard the latch click, as the witness Foley evidently did, was a natural and justifiable assumption, unless there was something to call his attention to the fact that á mistake in this matter might imperil others in life or limb, so that greater caution was necessary.

“ No one is guilty of negligence by reason of failing to take precautions which no other man would be likely to take under the same circumstances.” (S. & R. on Neg. .14 th ed.] § 11.) This seems to me an excellent statement of the rule applicable here. Without other notice or knowledge of the danger than that disclosed by the proof in the case at bar, no one situated as the defendants’ workmen were would be likely to take any greater precautions than they did in reference to the closing of the cellar door. While those precautions might have been deemed insufficient if the men had been aware or warned of the possible consequences of not fastening the door securely, they were apparently all that prudence demanded under the circumstances. (See Spengeman v. Alter, 7 Misc. Rep. 61.)

. . . . It may be that, upon another trial, the plaintiff will be able to-show that the defendants’ employees were sufficiently acquainted with the daily movements of the school children through the alley and near the cellar door to be aware that such an accident as actually occurred, or one of a similar nature, was liable to happen if the door was not firmly secured; but without. such proof the case, in my opinion, lacks an element which is essential to charge the defendants with negligence.

I think the judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred, except Hatch, J., dissenting.