Langevin v. Schaller

Full title: ADA D. LANGEVIN, as Administratrix, etc., of ABEDINGO LANGEVIN, Deceased…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 1, 1914

163 App. Div. 52 (N.Y. App. Div. 1914)

148 N.Y.S. 534

Opinion

July 1, 1914.

James A. Van Voast, for the appellant.

Leary Fullerton [ James A. Leary of counsel], for the respondent.

KELLOGG, J.:

The plaintiff's intestate tripped and fell over a rope extending across the sidewalk on Henry street and suffered the injuries for which he has recovered. December 5, 1912, he was returning to his home between six-thirty and six-forty-five in the evening and found a lumber wagon blocking the sidewalk in front of the defendant's premises. He passed around in front of the team, came upon the sidewalk and continued his course. When a few feet from the wagon he stumbled over a rope extending a few inches above the sidewalk. On the second floor of the defendant's building he received and stored the flour for his bakery, receiving for use therein about a carload of flour each month and a half. The flour was taken from the wagon and elevated into the bakery by means of a rope and pulleys. A block was placed near the building and another block outside of the sidewalk, and a rope extended from the pulley upon each side of these blocks across the sidewalk to a pulley above. A horse hitched to the rope in the street drew the flour from the wagon into the second story. When the rope was taut it was a few inches above the sidewalk; when slack it lay upon the walk. The defendant was permitted by the city authorities to put the blocking in the street for the purpose of operating the pulleys.

There were no protections here to guard against just such an accident as happened, and the jury were justified in finding that the injury came from the negligent manner of using the rope across the sidewalk.

It is urged, however, that the defendant contracted with a truckman to draw the flour from the freight house and elevate it into the second story of his building, using the apparatus provided for that purpose, the defendant paying eight cents per barrel for such service, and that the negligence is not the negligence of the defendant but of an independent contractor, for which he is not responsible.

In operating this rope across the sidewalk the duty was charged upon the defendant of exercising care that pedestrians using the walk should not be injured thereby. Every person using a sidewalk for the purposes of trade or business conducted upon his premises is charged with the duty of taking reasonable care to protect the public from injury resulting from such use of the walk. The contract with the truckman contemplated the use of the rope across the sidewalk, and charged upon the defendant the duty of seeing that the rope was used with due regard to the safety of pedestrians. ( Downey v. Low, 22 App. Div. 460; Scott v. Curtis, 195 N.Y. 424.)

We have examined the facts with care and find the judgment fairly sustained by the evidence and find no error calling for a reversal of the judgment. The judgment and order are, therefore, affirmed, with costs.

Judgment and order unanimously affirmed, with costs.