Schroeder v. City & County Savings Bank of Albany

Hill, P. J. Plaintiff recovered a verdict for personal injuries received in February, 1938, against the defendant bank, owner of premises on the northeast corner of South Pearl and Norton Street in Albany, and its contractor, a copartnership, Sano-Rubin Construction Company, and against the contractor of a tenant soon to occupy the premises, M. Gerber Construction Company, Inc. The Trial Judge denied the motion to set aside the verdict and dismiss the complaint as against the bank, but granted it as against the two contractors. The bank appeals. The bank, acting through its contractor, constructed a barricade twenty to twenty-five feet in height, inclosing substantially all of the sidewalk upon each of the streets adjacent to the store building. During the small hours of the morning, a heavy but not unprecedented wind was blowing and the portion of the barricade which was parallel to Pearl Street fell, entangling trolley and telephone wires and creating an obstruction which plaintiff’s employer, the United Traction Company, sought to clear through the efforts of plaintiff and a fellow worker, aided by membérs of the city police force. The portion [209] of the barricade parallel with Norton Street continued to stand, but was unstable and swayed in the wind. Plaintiff was injured while using a ladder which he had placed against the standing portion which he was attempting to make fast. There were no exceptions to the main charge which occupies more than thirty pages of the printed record. An examination of the charge itself will disclose better the law of this case than to label it with the somewhat elastic term, res ipsa loquitur. The court charged: “As to whether or not this barricade was built in a reasonably safe and proper manner, and whether it fell because of the operation and as a result of an act of nature, you will take into consideration the testimony which has been given here as to when it was erected, where it was located, its height and what weather conditions existed on the 28th day of February, 1938. Weather bureau records have been introduced in evidence showing the velocity of the wind at the time of the accident and prior thereto. . Take all this evidence into consideration in determining whether or not that barricade was built in a negligent and careless manner and whether or not it was negligently and carelessly maintained. “It is a well settled rule of law that if a person erects a structure upon or over a street in a city he is under obligation to take reasonable care that it shall not fall into the street and injure persons lawfully using the street. If a structure does fall and cause injury to a person lawfully on the street, the accident is prima facie evidence of negligence, or in other words a presumption of negligence. arises. “ I do not mean nor do I wish you to conclude that this rule of law — namely, the falling of a structure into the street — relieves a plaintiff of a burden of proof nor does it create or raise a conclusive presumption in favor of the plaintiff. The fact of the occurrence and attendant circumstances merely furnishes some evidence which requires that defendant go forward with his proof and rebut negligence arising therefrom. This ■presumption may be overcome by evidence showing the cause of the occurrence and that the cause is attributable to some person other than the defendant for whose acts he is not responsible; and this presumption may also be overcome by showing the cause of the injury although attributable to a third person is. of such a character that the defendant is not to be blamed in connection therewith and that such occurrence is in the nature of an accident unavoidable.” [210] This is a correct exposition of the law as to the defendant bank, its counsel took no exception, and it is the law of the case. The Trial Justice, with praiseworthy patience, passed upon numerous requests from the floor, which occupy twenty pages of the record. Appellant bank relies upon a request and refusal to charge to present the so-called res ipsa loquitur issue. Its counsel requested: “ I ask your Honor to charge the jury that the doctrine of res ipsa loquitur does not have any application in this case under the evidence.” This the court declined to charge, and an exception was taken. Had the request been granted, it would have been meaningless so far as the. jury was concerned. Courts have found it necessary, with great frequency and considerable volubility, to explain this Latin phrase and its significance even to lawyers. The request did not raise the issue argued. The defendant bank caused this dangerous structure to be erected and had arranged that the tenant’s contractor would remove it and return the material to the bank’s contractor. Plaintiff received his injuries after one portion of the structure big as the side of a small house, had fallen into the public street, damaging property and endangering the public, and when attempting to stay the remaining portion that was swaying in the wind, threatening further injury. The primary cause of his injury under the findings of the jury, was the negligently constructed barricade, and to suggest that he was injured because he did not place his ladder properly is to raise the trivial above the important. The trial of this case began on October 19, 1942, and the jury came in on the early morning of the 29th. No witnesses were sworn on behalf of any defendant. Eight witnesses beside the plaintiff gave evidence in his behalf; of these, two were city employees who testified concerning the permits obtained in connection with the erection of the barricade, two officers of the bank, a lieutenant of police, and three traction employees. On behalf of the plaintiff the issues tendered were the ownership of the building, the work being done by the defendant bank within the barricade, which had not been completed at the time of the injury, the use being made of the barricade by the AL-Mile Shoe Company impleaded by the codefendants, the falling of the structure and the facts as to the accident itself. The answer of each of the defendants pleaded that the others were negligent, and the answers of defendant bank and defendant M. Berber Construction Co., Inc., brought in the Shoe Com [211] pany for the purpose of ascertaining its liability, concerning which all stipulated as it now appears, but without the knowledge of the plaintiff, that the issues of law and fact between the three defendants selected by the plaintiff and the impleaded Shoe Company should be submitted to the Trial Justice to be determined by him the same as though a trial had been had before a jury, at which hearing each defendant might submit proof. The stipulation ends with this recital: “ And that all of the issues both as to law and fact between all the parties except the plaintiff shall be decided and determined by the court.” This was somewhat in keeping with the Civil Practice Act (§§ 193, 211-a) as interpreted by the Court of Appeals (Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305) wherein it is determined that a plaintiff may sue as many or as few defendants as he pleases in an action against joint tort feasors, leaving the pro rata contribution by defendants for later action. This plaintiff, nearly six years after the accident, should not be required to suffer further delay which would almost amount to a denial of justice, to straighten out complicated issues that may exist between the defendants and concerning which no proof was offered upon the trial. He proved a rather simple case, and a jury has returned a verdict resolving all issues of fact in his favor. No exceptions were taken to the main charge and no requests were denied which raise an issue that requires a reversal.