Imágenes de páginas

tide, and can be easily brought to the level of the deck of the float. Railroad tracks extend from the yards of the defendant to the wharf and across the bridge. A windlass stands on the wharf, operating a hawser, which has a ring on the end of it. On the bridge is stationed an employe of the railroad, whose duty it is to hand the hawser to the man standing on the bow of the incoming float, who fastens it to the hook on the float, and then, by means of the windlass, the float is brought to the end of the bridge, after which the bridgeman runs the keys forward into the toggle boxes or grooves on the deck of the float.

It is necessary that the ends of the tracks on the float and of those on the bridge should be brought and kept close together, and in line, so that the cars may be moved to and from the floats. The trackson the bridge and on the floats are held firmly end to end by four steel keys, which are 7 feet long, about 41 inches square, and weigh between 700 and 800 pounds each, one being on each side of the bridge, and two near the center. They are fastened permanently to the bridge, and when in use are run out about 3 feet onto the float and into toggle boxes or grooves. When the float is ready to leave the wharf, the keys should be, and usually are, shoved back onto the bridge, where they remain until another float comes in. It is the practice and duty of the railroad to operate the bridge and the keys. On May 15, 1890, the plaintiff was, and for three or four years before had been, in the employ of the New York, New Haven & Hartford Railroad Company as a floatman on its floats. On the date mentioned he was engaged on float No. 23, which at the time was towed by tug or transport No. 5. At about 8 o'clock in the evening of the day mentioned, while the tug and float were lying at Harsimus Cove, in Jersey City, the captain was ordered by the New York, New Haven & Hartford Railroad Company to go to defendant's wharf. The order was obeyed, and the float reached the wharf about 40 minutes past 8 o'clock. When near the wharf, it was found that a float belonging to another line was lying at the bridge. Thomas Gould, an employe of defendant, came from the wharf onto the float lying alongside of the bridge, and said, “If you want to get into the bridge, you will have to pull this float out." Thereupon the per sons in charge of tug No. 5 and float No. 23 drew the float lying alongside the bridge out of the slip, and left it in a place of safety near by, and then entered the slip. It was the duty of the plaintiff to stand on the starboard side of the bow of his float, and receive the hawser, which it was the duty of defendant's bridgeman to hand him. The plaintiff took this position, and, as the float was brought near the bridge, one of the steel keys, which, when the other float was pulled out, had not been drawn back onto the bridge, struck him, breaking one of his legs, and rendering amputation necessary. The negligence complained of was in permitting these keys to project beyond the bridge when the float approached it. The night was dark, and there was some con. troversy on the trial whether the lights on the bridge and on the float were sufficient to enable the plaintiff, had he exercised due

care, to see that the keys projected beyond the edge of the bridge. It was conceded on the trial that the float on which the plaintiff was employed was lawfully at defendant's pier at the time of the accident; and it was testified, and was not contradicted, that cars are transported at all hours of the day and night, and that the bridges are always manned. It was not unusual for an incoming float to remove an idle float lying at the wharf, and then take its place. And, besides, the captain of float No. 23 was requested by defendant's bridgeman, Gould, “to pull that float out, so that they could get in." So it appears by the uncontradicted evidence that the float on which the plaintiff was employed was at this particular time rightfully at the wharf, and, by the author ity of defendant's bridgeman, removed the idle float, and entered in its place. It seems that defendant's employes had ample notice that float No. 23 was about to draw near the bridge, and it was their duty to exercise due care to have it in a safe condition to receive the float. It was also testified, and not contradicted, that ir case keys projected beyond the edge of the bridge they endangered incoming boats and their employes. This evidence presented a question for the jury as to whether the employes of the defendant were guilty of negligence which caused the plaintiff's injury. The evidence descriptive of the plaintiff's conduct on the occasion in question is not such as authorized the court to hold as a matter of law that he was guilty of negligence which contributed to the accident. The evidence presented two fair questions of fact for the jury: (1) Were the defendant's agents guilty of negligence which caused the injury? (2) Did the plaintiff, by his own negligence, contribute to his injury, and was it error to take the case from the jury?

This case has been before this court on a former appeal. 22 N. Y. Supp. 3. Judging from the statement of facts contained in the opinions delivered on the former appeal, the evidence on the first trial was quite different from that given on the second.

For ex. ample, it is stated in the leading opinion delivered on the former appeal that"The Starin float having been detached from the bridge, the bridgeman took one end of the hawser, the other end being made fast to the float, climbed up on the south rack, walked along the rack as the float made off, and, with the assistance of a man, put on the float by the captain of the tug, secured the float at the mouth of the slip.

Before the bridgeman had time to do this work, and return to his position upon the bridge, and before any notice was given that the slip was ready for occupancy, the New Haven float was shoved into the slip."

There is no such evidence in this record, and, besides, it is testified that the bridgeman stood with the hawser in his hand, ready to hand it to the floatman when the float came within reach, and defendant's employes had notice of the coming of the float. By this record it appears that between 15 and 20 minutes elapsed between the time when the New Haven tug started to pull out the empty float and the time when the bridge was struck, and that the four keys could be pulled back within two minutes. On the former


trial it appears by the opinion that the testimony was that it would take eight or ten minutes to run back the keys. A cursory comparison of the opinions delivered on the former appeal with the present record shows that the facts are quite different.

The judg. ment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

O'BRIEN, J., concurs.

VAN BRUNT, P. J., (dissenting.) I cannot concur in the conclusion arrived at by my associates in this case. I am utterly at a loss to find in this record any evidence of negligence upon the part of the defendant. Whatever negligence there was arose from the im. petuosity and undue haste of the pilot of the boat upon which the plaintiff was employed. It appeared from the evidence that when the float upon which the plaintiff was employed came to the slip of the defendant it was already occupied by another float, and that they signaled to know whether they could come into the slip, and received a reply that they could do so provided they pulled out the float then in the slip. It further appeared that they pulled out the float, and, without any invitation or notice that the pier was ready to receive them, the pilot having charge of the float upon which the plaintiff was injured, being in a hurry, drove the float into the slip, and one of the plaintiff's feet was caught in the keys which project. ed from the bridge. It further appeared that this pilot knew of the existence of these keys, and that they were out upon the float that was occupying the pier, and that they were required to be pulled back before he could enter the pier with safety; and yet, without any notice that they had been pulled back, or that the pier was ready, he drove his float in, and the plaintiff was caught between one of these keys and the deck of the float; the only evidence being that perhaps there was time enough to have pulled in the keys. But I fail to see that there was any negligence upon the part of the emplove of the defendant until he was invited to go into the slip after the other float had been removed. Instead of waiting to ascertain whether the pier was ready, knowing that something had to be done before he could safely enter, he was in such a hurry that he drove his float in, regardless of what might be the condition of the bridge. In the prevailing opinion it is said: "It seems that the defendant's employes had notice that float 23 was about to draw near the bridge, and it was their duty to exercise due care to have it in a safe condition to receive the float." But where there is, in this case, any notice to them that this incoming float was to be driven in at once, is not pointed out. The employes of the defendant had no reason to suppose that the pilot controlling the float, knowing the danger of coming in with these keys projecting, would rush his boat in, re gardless of the risk, without ascertaining that the slip had been made ready for his reception. That he was negligent is beyond question. Without an intimation that the bridge was ready, to sirove his float in, and then, because the bridge was not ready, to

[ocr errors]

claim negligence upon the part of the defendant, seems to be apply. ing a very harsh rule of diligence, and such as has never heretofore been sanctioned. The judgment should be affirmed, with costs.


(Supreme Court, General Term, First Department. February 16, 1894.) ATTACHMENT-AYENDMENT-INCORRECT STATEMENT OF CLAIM.

Where the affidavit sets up a claim for labor and services, and it appears that more than half the amount of such claim was represented by a note not due, and the circumstances are such that plaintiff could not have made an innocent mistake, he will not be allowed to amend the warrant of attachment by reducing the amount, but it will be vacated on the motion of a junior attachment creditor. Appeal from special term, New York county.

Action by Peter Peiffer against John E. Wheeler and another. From an order denying a motion by Henry Delafon and another, junior attachment creditors, to vacate plaintiff's attachment, and also granting plaintiff's motion amending said attachment, said junior attachment creditors appeal. Reversed.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER, JJ.

John Frankenheimer, for appellants.
J. B. A. Mullally, for respondent.

VAN BRUNT, P. J. On the 4th of August, 1893, the respondent obtained an attachment against the property of the defendants Wheeler & Fish for the sum of $2,868.92 on the ground that the defendants were residents of Newark, N. J., setting up in his affi. davit a cause of action for work, labor, and services performed at agreed prices, aggregating the sum of $2,868.42. The appellants subsequently procured an attachment against the property of the defendants, and the same was levied upon the same property upon which the attachment of the respondent had been levied, and this motion was thereupon made to vacate the plaintiff's attachment. Upon the hearing of the motion it appeared that but a small portion of the amount for which the attachment was issued was for work and labor; and it was claimed upon the part of the plaintiff that he made a mistake in describing a portion of his indebtedness, which was upon notes lent. It further appeared that another portion was represented by a note which had not yet become due, and a motion was made upon the part of the respondent for leave to amend the attachment by reducing it to the amount which was due. This motion was granted, and the motion to vacate denied; and from the order thereupon entered this appeal is taken.

One of the questions presented upon this appeal is that the court has no power to amend a warrant of attachment by reducing its amount; but upon a careful examination of the argument

presented upon the part of the appellants we cannot see that there is any reason to doubt the power of the court, in a proper case, to make such an amendment. It cannot be that, where a party has innocently and in good faith made an averment in regard to the amount of the indebtedness of the defendant in the attachment to him, he must lose his whole lien because he has inadvertently made an error. No such arbitrary and rigid rule has yet obtained, and, in view of the liberal provisions of the Code in re gard to amendments, we do not think it will. The only case which has been found to support any such view is that of Buhl v. Ball, 41 Hun, 61, where the court held that, upon a motion to vacate an attachment upon the papers upon which it was granted, no affidavit could be received to fortify the allegations contained in the original papers. This arose from the rule of the Code that, where such motion is made upon the papers upon which the war. rant was issued, no additional affidavits can be read in support thereof. Neither do we think that Kibbe v. Wetmore, 31 Hun, 424, is an authority for the proposition that an amendment can be allowed where an objection is taken to the proof of the facts justifying such amendment upon the hearing of the motion to discharge the attachment. In that case the facts justifying the amendment were presented to the court without objection, and the court conformed the process to the proofs. In order, however, to justify the court in making such an amendment the utmost good faith upon the part of the plaintiff should be shown, and in this regard we think the plaintiff entirely failed. A perusal of the papers upon which this order was made leads to the conclusion that the plaintiff intended to grab everything in sight, in order that he might secure the money due and to become due from the defendants to him. His excuse in regard to the note which was not due seems to be entirely untenable; and his claim that he forgot that the whole amount for which the attachment was issued was not due for work and labor performed, but that more than half of it was upon note transactions, seems to make too severe a call upon credulity to entitle it to belief. The transac tions of this plaintiff are not shown to be so large that he would be likely to forget a little thing of this description. Out of $2,800, for which the attachment was issued, only $1,100 appears to have been due for the cause of action set out in the complaint. Now, it is clear that, in case he had declared in a complaint for the cause set out in this affidavit, he could only have recovered the $1,100. Besides this $1,100, he includes some $1,400 on note transactions, and some $400 more for which he held a note which was not due. This could not have been an innocent mistake. The fact that this was an unusual transaction, viz. of borrowing notes, instead of being, as plaintiff alleges, a reason for his forgetting it, was a reason for his remembering it. We can come to but one conclusion, and that is that the plaintiff was willing to swear to his whole indebtedness, due or not due, and whether arising out of the facts stated in his affidavit or not, in his great haste to get his security. Under these circumstances we do not think that

« AnteriorContinuar »