
    Emma Strutt, as Administratrix, etc., of Conrad Strutt, Deceased, Respondent, v. The Brooklyn and Rockaway Beach Railroad Company, Appellant.
    
      Negligence—carelessly dipping upon alióse laid upon a wharf-
    
    The failure of a passenger while walking in the daytime down a broad wharf, with no person nearer to him than fifteen feet, to observe and avoid or step over a hose from three to four inches in diameter,- used to convey water to the boats and extended upon the whitrf in plain sight, over which he fell and was injured, constitutes contributory negligence on his part.
    Appeal by the defendant, The Brooklyn and Rockaway Beach Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on. the 5th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Isaac M. Kapper, for the appellant.
    
      James O. Gropsey, for the respondent.
   Cullen, J. :

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. The defendant maintained at Rockaway Beach a pier or wharf at which its steamboats landed, and a hotel and music stand adjacent to it. There was a walk or promenade over forty feet wide made of planks, built from the landing place to the railroad station. On the wharf there was a hydrant from which water was furnished to the defendant’s steamboats and those of other parties. Attached to the hydrant-was a rubber hose, three or four inches in diameter, through which water was carried to the boats. The accident occurred about four o’clock in the afternoon of September 2, 1894. At the time of the accident .this hose lay extended on the- wharf. There were very few passengers on the boat from which the deceased came. Witnesses state the number as about fifteen. The deceased, in walking along the wharf, tripped on the rubber hose and fell, receiving injuries which caused his death. There was evidence tending to show that the deceased had previously met with an injury, affecting his health, and which might render him liable to a sudden attack of apoplexy.. The question, however; whether the death of the deceased was occasioned by the fall or by an apoplectic attack was plainly for the jury, and with that determination we cannot interfere.

We are also of opinion that defendant’s ownership of the wharf, hydrant and hose being conceded, the presumption was that it was responsible for the condition and position of the hose, and that to relieve itself from that presumption it was bound to explain how the hose was in .that position without the defendant’s fault. But still we think that the plaintiff’s cause of action was' not made out.

If we assume that the conduct of the defendant, in suffering the hose to lie extended upon the wharf, was sufficient to authorize the jury to charge it with negligence (of which there may be grave doubt, Beltz v. City of Yonkers, 148 N. Y. 67; O’Reilly v. L. I. R. R. Co., 15 App. Div. 79), we think that the plaintiff failed to establish the other element of her cause of action—the freedom of the deceased from contributory negligence. The hose lay on the wharf in the plain sight of any one who might look in that direction. It was daylight. There was no congregation ór crowd of . passengers that in any manner interfered with the deceased seeing and observing the condition of the wharf on which, he was walking. The nearest persons to him seem to have been some fifteen ór twenty feet distant. The deceased had unquestionably the right to assume-that the wharf was safe and secure,' and' was not bound to anticipate' defects or guard against dangers in it. But in what. sense had he the right to assume that it was safe and secure ? He had the right to believe that the structure was sound and free .from weakness; he was justified in believing that -the planks were securely fastened, that they were free from decay and that they were sufficiently supported, and acting on that belief there was no duty imposed upon him to make any examination. But as to the presence of articles or objects on the wharf the question is very different. On this wharf, were mooring posts and the hydrant itself. It is conceded that as to these the deceased was bound to observe and. take notice of them. On wharves and docks are often, if not generally, to be found objects temporarily deposited there, and as a rule-their presence cannot be considered, as rendering those places . either unsafe or insecure. I know of few, if any, places where the traveler is justified in proceeding wholly unobservant of his surroundings. As he goes along-the highway he must anticipate the possibility of hydrants, of telegraph and' electric light poles, hitching' posts and carriage blocks,- and also the fact that the use' of the street may be temporarily' encroached upon lawfully by-an adjacent owner, either in the receipt of goods or in the improvement of his property. As he walks along a wharf he must look to see what structures are upon it and what articles aré deposited there. It was not necessary that the deceased should pick his steps, but it seems to us clear that if he had paid any attention whatever to the place where lie . was walking he would have discovered the hose and avoided it, or stepped oyer it: In failing to do so he was guilty of contributory negligence. (Dubois v. City of Kingston, 102 N. Y. 219; Weston v. City of Troy, 139 id. 281; Whalen v. Citizens’ Gas Light Co., 151 id. 70.) If this accident had occurred at night, or where, the plaintiff was surrounded by other passengers, so as to render his observation difficult, a very different question would be presented.

The judgment and order appealed from should be reversed and a ■new trial granted, costs to abide the event.

All concurred.

Hatch, J.:

I concur in the views expressed by Mr. Justice Cullen in his opinion. I am also of opinion that actionable negligence upon the part of the defendant, in this case, was not established. There may exist circumstances where leaving a hose, of this character, stretched across the wharf ■ might constitute negligence. But under the circumstances of this case the inference of negligence may not be drawn. I do not understand that any. of my associates dissent from this view, but prefer to' place the reason for their conclusion upon the ground stated in the opinion.

Judgment and or.aer reversed and new trial granted, costs to abide the event.  