Leary v. Woodruff

New York Supreme Court

Leary v. Woodruff

6 Thomp. & Cook 390, 11 N.Y. Sup. Ct. 99

DecidedMarch 15, 1875

StatusPublished

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Bluebook

Leary v. Woodruff, 6 Thomp. & Cook 390, 11 N.Y. Sup. Ct. 99 (N.Y. Super. Ct. 1875).

Pincite

Opinion

Tappen, J.

The plaintiff, on the trial at the Kings circuit, was nonsuited, and brings this appeal. The action was for negligence. The defendant occupied a wharf and warehouses at Brooklyn, on the East river; the plaintiff had his vessel there unloading a cargo, and she careened and sunk. It seems that a bank or mound had accumulated under the water in front of and adjacent to defendant’s premises, and as the tide went out the vessel met with -the accident stated.

The plaintiff says that, having been invited to the defendant’s premises for the business in question, a duty devolved on the defendant to keep his premises and the approaches thereto, which were under his control, in suitable order for such business. This proposition is supported directly by the case of Carlton v. Franconia I. & S. Co., 99 Mass. 216. In that case a vessel sustained injuries from a rock in the bed of the dock, under water, and the defendants were held liable. And the' court says, even if defendants had no title to the dock, yet, if they occupied it and the adjoining wharf, and for their own benefit induced vessels to come to the wharf, their liability is not diminished.

The like principle is held in Sweeny v. Old Colony & Newp. R. R. Co., 10 Allen, 372. A liability will not attach to the owner or occupant of the premises if the defect or obstacle be so hidden that its existence could not be discovered by a reasonable examination commensurate with the use to be made of the premises. Shearm. on Keg. 658.

The defendant, among other matters, claimed that the unskillful manner of unloading and discharging the cargo by the plaintiff was [392]*392the cause of, or contributed to, the accident. After testimony had been put in on both sides, the court granted the defendant’s motion to dismiss the complaint, directing the exceptions to be heard in the first instance at the general term.

We are of opinion that this was error, and that, upon the facts proven, the plaintiff was entitled to go to the jury.

A new trial is, therefore, ordered, costs to abide the event.

New trial ordered.

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Tappen, J.

The plaintiff, on the trial at the Kings circuit, was nonsuited, and brings this appeal. The action was for negligence. The defendant occupied a wharf and warehouses at Brooklyn, on the East river; the plaintiff had his vessel there unloading a cargo, and she careened and sunk. It seems that a bank or mound had accumulated under the water in front of and adjacent to defendant’s premises, and as the tide went out the vessel met with -the accident stated.

The plaintiff says that, having been invited to the defendant’s premises for the business in question, a duty devolved on the defendant to keep his premises and the approaches thereto, which were under his control, in suitable order for such business. This proposition is supported directly by the case of Carlton v. Franconia I. & S. Co., 99 Mass. 216. In that case a vessel sustained injuries from a rock in the bed of the dock, under water, and the defendants were held liable. And the' court says, even if defendants had no title to the dock, yet, if they occupied it and the adjoining wharf, and for their own benefit induced vessels to come to the wharf, their liability is not diminished.

The like principle is held in Sweeny v. Old Colony & Newp. R. R. Co., 10 Allen, 372. A liability will not attach to the owner or occupant of the premises if the defect or obstacle be so hidden that its existence could not be discovered by a reasonable examination commensurate with the use to be made of the premises. Shearm. on Keg. 658.

The defendant, among other matters, claimed that the unskillful manner of unloading and discharging the cargo by the plaintiff was [392]*392the cause of, or contributed to, the accident. After testimony had been put in on both sides, the court granted the defendant’s motion to dismiss the complaint, directing the exceptions to be heard in the first instance at the general term.

We are of opinion that this was error, and that, upon the facts proven, the plaintiff was entitled to go to the jury.

A new trial is, therefore, ordered, costs to abide the event.

New trial ordered.

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6 Thomp. & Cook 390, 11 N.Y. Sup. Ct. 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leary-v-woodruff-nysupct-1875.

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