Crimmins v. United Engineering & Contracting Co.

Appellate Terms of the Supreme Court of New York

Crimmins v. United Engineering & Contracting Co.

49 Misc. 622, 96 N.Y.S. 1032

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1905

StatusPublished

Cited by3 cases

This text of 49 Misc. 622 (Crimmins v. United Engineering & Contracting Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crimmins v. United Engineering & Contracting Co., 49 Misc. 622, 96 N.Y.S. 1032 (N.Y. Ct. App. 1905).

Pincite

Opinion

Bischoff, J.

The defendant was sought to be held liable for its negligence in failing to light or guard an excavation, [623]*623made by it on private property adjacent to the highway, and the complaint was dismissed at the close of the plaintiff’s case. This ruling, upon the proof submitted, was, in our opinion, clearly sound.

The excavation was distant from the sidewalk some three or five feet, according to the different witnesses, and, while it may be that a pedestrian who had unintentionally deviated from the sidewalk — excusably because of the darkness — could have recovered for an injury caused by the proximity of the excavation (Beck v. Carter, 68 N. Y. 283); the plaintiff’s claim, as developed by the proof, is founded upon no such principle of liability.

Bie did not wander from the strict lines of the highway; he left it deliberately and fell into the excavation which he found at a place known to him not to be the highway. The question, therefore, whether this excavation should have been guarded, in the exercise of reasonable care for the safety of persons using the street, was not in the case; and this was the measure of the defendant’s duty, as indicated by i be averment of negligence in the complaint.

The proof that the private land was used by the public for the purposes of crossing, would have a bearing upon the plaintiff’s contributory negligence, or, in an action against the owner of the land, upon the main question of negligence; but it had no bearing upon the negligence of this defendant, under the allegations of the complaint, nor was a new issue of negligence, upon this theory, litigated by consent, since the evidence of the license to use this unfenced lot was stated by the plaintiff to be merely explanatory of the situation and locality.

Again, there was nothing to connect this defendant with the license given by the owner of the land, whether by notice or otherwise; and its duty of guarding the excavation for the protection of the licensees was not apparent from anything which the proof suggested.

The complaint was properly dismissed for failure of proof and the judgment is therefore affirmed, with costs.

Soott and MacLeah, JJ., concur.

Judgment affirmed, with costs.

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Bischoff, J.

The defendant was sought to be held liable for its negligence in failing to light or guard an excavation, [623]*623made by it on private property adjacent to the highway, and the complaint was dismissed at the close of the plaintiff’s case. This ruling, upon the proof submitted, was, in our opinion, clearly sound.

The excavation was distant from the sidewalk some three or five feet, according to the different witnesses, and, while it may be that a pedestrian who had unintentionally deviated from the sidewalk — excusably because of the darkness — could have recovered for an injury caused by the proximity of the excavation (Beck v. Carter, 68 N. Y. 283); the plaintiff’s claim, as developed by the proof, is founded upon no such principle of liability.

Bie did not wander from the strict lines of the highway; he left it deliberately and fell into the excavation which he found at a place known to him not to be the highway. The question, therefore, whether this excavation should have been guarded, in the exercise of reasonable care for the safety of persons using the street, was not in the case; and this was the measure of the defendant’s duty, as indicated by i be averment of negligence in the complaint.

The proof that the private land was used by the public for the purposes of crossing, would have a bearing upon the plaintiff’s contributory negligence, or, in an action against the owner of the land, upon the main question of negligence; but it had no bearing upon the negligence of this defendant, under the allegations of the complaint, nor was a new issue of negligence, upon this theory, litigated by consent, since the evidence of the license to use this unfenced lot was stated by the plaintiff to be merely explanatory of the situation and locality.

Again, there was nothing to connect this defendant with the license given by the owner of the land, whether by notice or otherwise; and its duty of guarding the excavation for the protection of the licensees was not apparent from anything which the proof suggested.

The complaint was properly dismissed for failure of proof and the judgment is therefore affirmed, with costs.

Soott and MacLeah, JJ., concur.

Judgment affirmed, with costs.

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49 Misc. 622, 96 N.Y.S. 1032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crimmins-v-united-engineering-contracting-co-nyappterm-1905.

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