Rogers v. Jones

Appellate Division of the Supreme Court of New York

Rogers v. Jones

115 A.D. 576, 100 N.Y.S. 1013, 1906 N.Y. App. Div. LEXIS 3010

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1906

StatusPublished

This text of 115 A.D. 576 (Rogers v. Jones) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rogers v. Jones, 115 A.D. 576, 100 N.Y.S. 1013, 1906 N.Y. App. Div. LEXIS 3010 (N.Y. Ct. App. 1906).

Pincite

Opinion

Woodward, J.:

The complaint was dismissed in this action at the close of plain, tiff’s evidence, on the grounds that the facts proved did not constitute a cause of action. The plaintiff appeals from.the judgment and from an order denying a new trial, and it will not- be questioned that upon this appeal he is entitled to the most favorable inferences to be drawn from the evidence. But with this concession we are persuaded that. there should be no reversal of the judgment. The most favorable view of the evidence for the plaintiff would be that the defendants sent a large truck load of goods to the dock of the Maine Steamship Company, in charge of a driver who is not suggested to have been incompetent; that the plaintiff was an experienced longshoreman, and that it was a part of his duties to assist in the unloading of such trucks; that the load was brought to a place indicated by the steamship company’s .servant and that defendants’ driver went to the front end of the truck for the purpose of untying one of the ropes used in binding on the tiers of boxes and barrels which made up the load; that the plaintiff was engaged in holding up the rear end of the load ¿or the purpose of permitting the removal of the rope, and that'when the same was unfastened the weight was too heavy for the plaintiff and the driver in control of the rope to hold up, and a portion of it fell off, injuring the plaintiff: There is. no suggestion that the load Was improperly placed, or that it was not proper to have it bound with ropes,- or that it -was not proper for the driver to untie the rope, preparatory to unloading the same, and the negligence of the defendants’ servant, if any, must be found in the particular manner in which he unfastened the rope, and as to this there is no evidence showing that he was in any wise negligent, or that he did anything other than he was expected to do in the intelligent and practical discharge of his duties. The entire situation was obvious to the plaintiff; the defendants’ servant did what he was expected to do, and there was no actionable negligence in the case, as shown by the very best view that can be placed upon the evidence.

But beyond this, the plaintiff himself says in his initial statement, that he himself took off the first rope and that the things fell down upon him. He then says that he saw the driver go forward [578]*578to untie the rope, and that when this was done the load fell on him# but in either event there was no negligence shown on the part of the defendants’ servant, and when the motion was made to 'dismiss the complaint there was tio evidence before the jury to show that any wrong had been done the plaintiff ; the mere happening of the accident, under the .circumstances disclosed by the évidence, did. not raise a presumption against the defendants.

The judgment may be properly modified, by striking out the clause .“upon the merits,” and- as so modified the judgment and order appealed from should be affirmed, without costs.

Present—Hirschberg P. J., Woodward, Rich and Miller, JJ.

Judgment modified by striking out the words “ upon the merits,” and as. so modified judgment and order unanimously affirmed, without costs. «

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Woodward, J.:

The complaint was dismissed in this action at the close of plain, tiff’s evidence, on the grounds that the facts proved did not constitute a cause of action. The plaintiff appeals from.the judgment and from an order denying a new trial, and it will not- be questioned that upon this appeal he is entitled to the most favorable inferences to be drawn from the evidence. But with this concession we are persuaded that. there should be no reversal of the judgment. The most favorable view of the evidence for the plaintiff would be that the defendants sent a large truck load of goods to the dock of the Maine Steamship Company, in charge of a driver who is not suggested to have been incompetent; that the plaintiff was an experienced longshoreman, and that it was a part of his duties to assist in the unloading of such trucks; that the load was brought to a place indicated by the steamship company’s .servant and that defendants’ driver went to the front end of the truck for the purpose of untying one of the ropes used in binding on the tiers of boxes and barrels which made up the load; that the plaintiff was engaged in holding up the rear end of the load ¿or the purpose of permitting the removal of the rope, and that'when the same was unfastened the weight was too heavy for the plaintiff and the driver in control of the rope to hold up, and a portion of it fell off, injuring the plaintiff: There is. no suggestion that the load Was improperly placed, or that it was not proper to have it bound with ropes,- or that it -was not proper for the driver to untie the rope, preparatory to unloading the same, and the negligence of the defendants’ servant, if any, must be found in the particular manner in which he unfastened the rope, and as to this there is no evidence showing that he was in any wise negligent, or that he did anything other than he was expected to do in the intelligent and practical discharge of his duties. The entire situation was obvious to the plaintiff; the defendants’ servant did what he was expected to do, and there was no actionable negligence in the case, as shown by the very best view that can be placed upon the evidence.

But beyond this, the plaintiff himself says in his initial statement, that he himself took off the first rope and that the things fell down upon him. He then says that he saw the driver go forward [578]*578to untie the rope, and that when this was done the load fell on him# but in either event there was no negligence shown on the part of the defendants’ servant, and when the motion was made to 'dismiss the complaint there was tio evidence before the jury to show that any wrong had been done the plaintiff ; the mere happening of the accident, under the .circumstances disclosed by the évidence, did. not raise a presumption against the defendants.

The judgment may be properly modified, by striking out the clause .“upon the merits,” and- as so modified the judgment and order appealed from should be affirmed, without costs.

Present—Hirschberg P. J., Woodward, Rich and Miller, JJ.

Judgment modified by striking out the words “ upon the merits,” and as. so modified judgment and order unanimously affirmed, without costs. «

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Bluebook (online)

115 A.D. 576, 100 N.Y.S. 1013, 1906 N.Y. App. Div. LEXIS 3010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-jones-nyappdiv-1906.