Dukes v. Eastern Distilling Co.

New York Supreme Court

Dukes v. Eastern Distilling Co.

4 N.Y.S. 562, 58 N.Y. Sup. Ct. 605, 22 N.Y. St. Rep. 833, 51 Hun 605, 1889 N.Y. Misc. LEXIS 1600

CourtNew York Supreme Court

DecidedFebruary 11, 1889

StatusPublished

Cited by1 cases

This text of 4 N.Y.S. 562 (Dukes v. Eastern Distilling Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dukes v. Eastern Distilling Co., 4 N.Y.S. 562, 58 N.Y. Sup. Ct. 605, 22 N.Y. St. Rep. 833, 51 Hun 605, 1889 N.Y. Misc. LEXIS 1600 (N.Y. Super. Ct. 1889).

Pincite

Opinion

Barnard, P. J.

The defendant is a domestic corporation carrying on the business of distilling spirits at Blissville, in Queens county. The premises occupied by the firm are partly on one side of the track of the Long Island Railroad and partly on the other. There is a bridge connecting the buildings on each side of the railroad. This bridge at the time of the accident was 14 feet 11 inches above the top of the rails. The cars were from 10 feet to 12£ feet high. Some of these cars call for a brakeman to operate his brakes on top of the car. In September, 1885, just before passing under this bridge, a signal was given by a railroad engineer to apply brakes to the train. The plaintiff was a newly-engaged brakeman, and stood on top of the car to apply his brake when the bridge hit him and inflicted a severe injury. The bridge was built with the consent of the railroad company, and has been enlarged some with like consent. This consent was no defense to the construction of a dangerous nuisance. The railroad company subsequently, and before the accident, notified the defendant that the bridge was dangerous, and that it m ust be removed. This notice was repeated, but was not heeded by the defendant until the accident happened.

It is not important whether or not the company owns the premises. Whoever continues and adopts a nuisance is responsible for an injury caused thereby as if he constructed it. Wasmer v. Railroad Co., 80 N. Y. 212. The defend[565]*565ant maintained this structure until right after notice to remove it. Ho length of time without accident will excuse the defendant for an accident when it does happen. It was only a question of time. When a signal to brake was given just before reaching the bridge, and a brakeman who was ignorant of the obstruction should go on the car, as he was in duty bound to go, and the accident happened, of course the brakeman was free from fault. The smoke from the engine hindered his seeing the bridge. The judgment ought therefore to be affirmed, with costs. All concur.

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Barnard, P. J.

The defendant is a domestic corporation carrying on the business of distilling spirits at Blissville, in Queens county. The premises occupied by the firm are partly on one side of the track of the Long Island Railroad and partly on the other. There is a bridge connecting the buildings on each side of the railroad. This bridge at the time of the accident was 14 feet 11 inches above the top of the rails. The cars were from 10 feet to 12£ feet high. Some of these cars call for a brakeman to operate his brakes on top of the car. In September, 1885, just before passing under this bridge, a signal was given by a railroad engineer to apply brakes to the train. The plaintiff was a newly-engaged brakeman, and stood on top of the car to apply his brake when the bridge hit him and inflicted a severe injury. The bridge was built with the consent of the railroad company, and has been enlarged some with like consent. This consent was no defense to the construction of a dangerous nuisance. The railroad company subsequently, and before the accident, notified the defendant that the bridge was dangerous, and that it m ust be removed. This notice was repeated, but was not heeded by the defendant until the accident happened.

It is not important whether or not the company owns the premises. Whoever continues and adopts a nuisance is responsible for an injury caused thereby as if he constructed it. Wasmer v. Railroad Co., 80 N. Y. 212. The defend[565]*565ant maintained this structure until right after notice to remove it. Ho length of time without accident will excuse the defendant for an accident when it does happen. It was only a question of time. When a signal to brake was given just before reaching the bridge, and a brakeman who was ignorant of the obstruction should go on the car, as he was in duty bound to go, and the accident happened, of course the brakeman was free from fault. The smoke from the engine hindered his seeing the bridge. The judgment ought therefore to be affirmed, with costs. All concur.

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Bluebook (online)

4 N.Y.S. 562, 58 N.Y. Sup. Ct. 605, 22 N.Y. St. Rep. 833, 51 Hun 605, 1889 N.Y. Misc. LEXIS 1600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dukes-v-eastern-distilling-co-nysupct-1889.

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