Duncan v. International Committee of Young Men's Christian Associations

Smith, J.: The plaintiff was within a building owned and occupied by - the defendant as an invitee. He was seated upon a settee at the side of a large hall, twenty feet or more in width and a considerably greater distance in length. An upright piano was being moved through the hall into one of the rooms opening off therefrom, by the defendant’s servants, and while so being moved, and while the plaintiff was sitting upon the settee, the piano fell over upon him and caused the injuries for which he has here recovered. This piano was an upright piano of considerable weight, and the base was six feet in length by two feet wide. The truck placed thereunder upon which it was being moved was a four-wheeled truck, upon which a frame was placed, the wheels being placed fifteen inches apart both in breadth and in length, upon centers. The top of the truck itself was seven inches from the ground. It would seem to be apparent that a heavy load put upon so small a truck would need to be carefully put thereupon and to be carefully handled in order to avoid its falling off, and when the piano was rolled along upon the truck in close proximity to the plaintiff and fell over upon the plaintiff, that fact of itself, in connection with the circumstances of the case, in my judgment is prima facie proof of the negligence of the defendant’s servants in handling the same. It is of course impossible to prove just what negligent motion of the defendant’s servants caused the piano to fall or just what negligent want of care ih the bracing of the same; nor is such specific proof required in a case where the accident can only happen in the natural course of events by the careless act of the employee. There is no claim of any contributory negligence on the part of the plaintiff, and it seems clear that the occurrence of the accident itself, together with the circumstances under which it happened, is sufficient to authorize the jury’s conclusion that the defendant’s servants were negligent in the handling of the piano. [674] It is strongly contended, however, that the court erroneously submitted to the jury the question of the adequacy of the truck upon which the piano was being moved, without any allegation in the complaint of negligence in respect thereof. It is true that the complaint alleged negligence simply in the handling of the piano. The court first charged the jury that the question for them to determine was, ‘ ‘ Did the servant of the defendant exercise reasonable care and caution in moving that piano ? If he did not, the defendant should be held for negligence. If he did exercise reasonable care and prudence, and from no fault of his the piano fell, then the falling of it may be attributed to what is generally called an unforeseen accident.” The court thereafter charged: “ Now, you have to determine upon this question two things: As an incident, was the truck which has been put in evidence before you an adaptable or adequate means, so far as safety is concerned, to transfer that piano from one place to another ? It does not follow that because it has been used for a long time that that is to excuse the use of it, if the thing be unsuitable and inadequate for the purpose intended. The piano lay upon this truck loosely; there was no fastening about it, and if in the propelling of that piano in its turning or in the guiding by which its balance was lost it fell crushing the thumb of the plaintiff, then the defendant should be held responsible.” The court afterwards charged: ‘‘The law casts upon the plaintiff what is called the burden of proof. He must satisfy you by a fair preponderance of all the credible testimony in the case that the accident which befell him was due solely and exclusively to the negligence of the defendant, and that he did not in any way contribute to it by his own negligence. If you come to the conclusion that the plaintiff has failed to satisfy you by a preponderance of the credible proof, your verdict should be for the defendant.” At the close of the charge the defendant’s counsel said: “I respectfully except to that part of your Honor’s charge, in speaking of the truck, with regard to its being an adaptable and adequate or suitable appliance. I further except to that part of your Honor’s charge wherein your Honor stated that the fact that the truck had been used a long time without accident does not indicate that it is a sufficient appliance.” The Court: “ I did [675] not say a sufficient appliance.” Mr. Redington: “Well, whatever the term was that your Honor used. I understood your Honor to charge that the mere fact that the truck had been used for a long time, does not indicate that it was sufficient —. ” The Court: “Ho, I did not use the word appliance. ” Mr. Redington: “Well, that it was sufficient for that purpose.” The Court: “I did not use the words ‘sufficient track.’ However, you have the benefit of your exception.” It can hardly be held that the question was not a proper one to submit to the jury provided the defendant had been notified thereof by plaintiff’s complaint. That the truck was so small and so high from the ground as to cause the piano to fall over if it fell off the track unless most carefully handled is shown by the accident itself. Whether the moving of so heavy a piano upon a truck with the wheels so near together was a negligent act would, if insisted upon in the complaint, have been a proper question for the jury. While it is undoubtedly true that the charge is not clear, nevertheless a fair inference from the charge and the colloquy between the court and counsel at the end of the charge would be that the court intended the jury to understand that the adequacy of the truck was an incident to the care required in the defendant’s servants in moving the piano and was to be considered by them only in connection therewith. If defendant’s counsel had desired to clarify the situation it could have been accomplished by a simple request to charge, which was not made. The objection that this was erroneously submitted to the jury because of the fact that it was not in the complaint is not well taken. It was specifically stated in the bill of particulars and the truck was introduced in evidence by the defendant itself. Moreover, when the objection was made to the submission of this issue to the jury at the close of the charge, the attention of the court was not called in any way to the fact that it was not pleaded. In Eastwood v. Betsof Mining Go. (86 Hun, 91) the rule is stated in an opinion by Mr. Justice Rumsey, as follows: “ When one seeks to enforce the rule that facts proven in the case are not available unless they are pleaded, he must take this position at the trial, and, if the objection to the proof of the facts is not put upon that precise ground at [676] the trial, it cannot be taken advantage of at any later time.” That case was affirmed in 152 New York, 651. We see no reason, therefore, for disturbing the judgment, which, with the order, should be affirmed, with costs. Clarke, P. J., and Davis, J., concurred; Scott and Page, JJ., dissented.