Warner v. City of Albany

Foster, J. The plaintiff Vekna Harriet Warner sat down upon a bench in Lincoln Park in the city of Albany, and as she did so the bench tipped over backwards. She was thrown to the ground and injured. Before she sat down she saw nothing wrong with the bench, but shortly after the accident a policeman discovered that a pin on one side of the bench was missing. The bench was described as constructed of wood, with iron brackets ón the bottom of each side, and iron pins holding these brackets in place. The park and benches therein were maintained by the defendant city. Mrs. Warner and her husband sued the defendant in the City Court of Albany, apparently upon the theory of negligence. Their cases were consolidated and tried together. They produced the proof heretofore outlined. At the close of their case the trial justice dismissed their complaints because of their failure to show actual or constructive notice to the defendant of any defect in the bench prior to the accident. The trial justice adhered to a well-known principle which has often been applied in actions against municipalities, particularly in cases involving defects in streets and sidewalks. We think, however, the facts in this case, simple as they are, present a somewhat different situation and are not analogous. The city was under no obligation to furnish a bench, but having chosen to do so it was bound to exercise due care to see that a reasonably safe bench was provided. The bench in question proved to be unsafe because a pin, evidently a vital part, was missing. Only three possibilities can be logically assigned for this condition: (1) That the pin was missing when the bench was placed in the park; (2) that the pin fell out through use of the bench; (3) that someone deliberately removed the pin. The first possibility presents an element of negligence. The second possibility also presents an element of negligence because it may lead to the conclusion that the bench was loosely and imperfectly constructed if the pin fell out merely through use of the bench. The third possibility may be divided. If the bench was so loosely constructed that any one might easily remove such a vital part as a pin, more or less hidden from casual observation, then this also might present an element of negligence. On the other hand, if the bench was firmly constructed, so that some sort of tool or instrument was required to remove the pin, then the third possibility becomes only a remote probability." It is not the ordinary experience of men that people, either adults or children, take the trouble to bring tools or instruments of any kind to a public park for such a purpose. [679] This reasoning leads to the conclusion that the plaintiffs were improperly nonsuited. They were not required to exclude a remote probability as a causal relation. (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1.) They proved facts which might reasonably lead to the inference of a neglect of duty on the part of the defendant. We think the common viewpoint would be that a pin does not fall out of a properly constructed bench, nor would it be easily removed simply by hand if the bench was well made. The accident, therefore, plus the additional proof that it was caused by the absence of the pin, was sufficient to require the defendant to go forward with the evidence. It is argued that this will make the defendant an insurer. Such is not the case. If the defendant produces evidence indicating due care the duty of going forward shifts back to the plaintiffs, and in that event they will be required to prove notice. It is simply held here that under.the circumstances, and as the evidence now stands, the plaintiffs are not required to prove notice in the first instance. The elementary justice of this position is evident when we consider that plaintiffs have no knowledge as to when the bench was placed in the park, its condition, or the means by which the defendant may claim to have discharged its duty of exercising reasonable care; and they cannot secure such information because the officials of the defendant may not be subjected to an examination before trial. (Kasitch v. City of Albany, 283 N. Y. 622.) The judgment dismissing the complaint should be reversed, with costs. Hill, P. J., and Heffernan, J., concur; Schenck, J., dissents, in an opinion, in which Bliss, J., concurs.