
    Mary Galvin, as Administratrix, etc., App’lt, v. The Mayor, etc., of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    2Te<;uofack—Evidence—Vfuax ¡c.m Tim ,;vuy.
    On the trial oi' an action to recover damages for injuries resulting in th<' nbimiiii.".'! in'er.lai-j’ü I’l-uh, ¡I. appce.vd that flic deceased vas' ti'.o driver of a cart emi'loyed to deliver coal at the. court, house in the city of . iN'fW York ; tb it, while, engaged in the performance of this duty, a heavy iron g'cunk' loll upon hi’-.' and hulictul injerios, from which" he subséquciviy died ; that this grating hung on hinges, and -was used to cover a hoi; or hat hway in the sidewalk leading into Ive ba-emeht of tlie court bous.', through which the coal was to be deli wed; that there was not proper means for fastening it be"k, a.ei dial when uni'astf nc<l it vas dangerous. The idence showed that he was vbse.ved immediately before tlie yic ident slaniViig near bis cart., which we-; then becked to within a. foot’of the hntchwa •' where tlie coal was to lie dumped ; a moment after another coal-driver e-iming out of the hatchway was struck in the breast by-the feet of the plaintiff's intestate, as he was 'borne to the earth bv the grating. There was no eye-witness of what happened in the interval. Hold, that it was a, case for the jury; that it was not- indispensable to a recovery in such a case that an injured party should always produce eye-wi nesses as to tile manner in which an accident occurred." Peckuam and Gray, JJ., dissenting.
    
      Appeal from a judgment of the general term of the New York superior court affirming a judgment in favor of the defendant entered upon the dismissal of the complaint.
    ■ E. J. Myers, for app’lt; D. J. Dean, for resp’t.
   Ruger, Ch. J.

We think this was a case for the jury in all of its aspects. The plaintiff’s intestate was the driver of a cart employed to deliver coal at the court house in the qity of New York. While engaged in the' performance of this duty, a heavy iron grating fell upon him and inflicted injuries, from which he subsequently died. This grating hung on hinges, and was used to cover a hole or hatchway in .the sidewalk leading into the basement of the court house, through which the coal was to be delivered. While the work of delivery was in progress, this grating was intended to be thrown back against the side of the building. It then stood nearly upright, and when unfastened was liable to be thrown down by the slightest jar or interference. Ordinarily such a situation would not seem likely to threaten any danger, except to the cart from which the coal was" to be "dumped into the hatchway. It is not obvious why the driver should necessarily be in a position to receive injury ; but this was a question to be determined . as one of fact by the jury.

We infer from several offers made by the plaintiff that she intended to show that her intestate was called upon in the performance of his duty to go into the basement to present and procure the signature of some official of thfe city to a ticket showing the weight of the load he had to deliver.

This evidence the court below, upon the objection of defendants, excluded. We can see no valid reason for its rejection. The evidence tended to disclose a reason for the presence of the deceased at the place where he received his injuries,, and bore upon the question of his alleged negligence.

The trial court held that the plaintiff could prove only what the deceased actually did, and not what the usual and customary mode of delivering coal required him to do. The evidence tended to show a known and established mode of doing the business which was the subject of investigation, and was clearly competent. No question arises as to the defendant’s negligence, and it was admitted on the trial that it owned the court house and was charged with keeping and maintaining the same and its appurtenances in a safe and suitable condition, free from danger to those lawfully in and about the building. The evidence tended to show that the grating, while thrown back to permit the dumping of coal, was dangerous and liable to inflict injury upon those engaged in that business," unless securely fastened by a hasp, hook or other contrivance. It also tended to show that the appliances furnished by the city were wholly inadequate to effect the purpose. A case of substantially undisputed negligence was made out against the defendant.

Upon the trial the plaintiff was non-suited upon two grounds, viz.: First, that negligence producing the injury was imputable to Purcell, a co-servant of the deceased, for which the defendant was held not to be liable, and, second, that the deceased was, himself, as matter of law, guilty of contributory negligence.

We are not aware of any rule which exempts a wrongdoer from the consequences of his own negligence, because some stranger discovers it and omits to repair it. Purcell was not the servant of the city, and owed it no duty to put the court house in proper condition -to receive coal safely: This duty the law imposed upon the city, and it was not excused from its performance by the fact that third persons had observed its non-performance and had omitted to repair its neglect. Benzing v. Steinway, 101 N. Y., 547; Webster v. The Hudson R. R. R. Co, 38 id., 260; Barrett v. The Third Ave. R. R. Co., 45 id., 628.

The familiar rule, that a master is not liable to his servant for damages occasioned to him through the negligence of unskillfulness of his co-servant, has no application to the facts of this case and cannot be invoked to shield the defendant from the consequences of its negligence. Wright v. N. Y. C. R. R. Co., 25 N. Y., 562.

A more serious question grows out of the alleged-negligence of the plaintiff’s intestate arising from the fact that no one observed him at the precise moment of the accident; or was able to testify as to what he was doing when the grating fell upon him. Under the strict rule of evidence adopted by the trial court, all proof of what he was probably attempting'to do in the customary manner of delivering coal, was excluded from the consideration of the jury, and it was there held that there was no evidence "from. which the absence of contributory negligence could be inferred. The ruling of the trial court seemed to have been based upon the assumption that the proof showed the deceased unnecessarily in the place where he was injured, and that there was nothing in the circumstances appearing on the trial from which a jury was authorized to infer that he. was necessarily or properly there in the performance of the duty he had to discharge.

It is by no means indispensable to a recovery in such a case that an injured party should always produce eye-witnesses as to the manner in which an accident occurred, for in many cases this is impossible and is almost always difficult; but it does not follow that a recovery cannot be had in such cases. It has been said that, “in an action for personal injury.from negligence of the defendant, the absence of any fault on the part of the plaintiff may be inferred .from the circumstances in connection with the ordinary habits, conduct and motives of men,” and that “ the character of the defendant’s negligence may be such as prima facie to prove the whole issue.” Johnson v. H. R. R. Co., 20 N. Y., 65. We think the jury in this case had the right to infer, from all the facts, that the deceased was called to the place where he received his injuries in the performance of his duty, and had not omitted the precautions which a prudent man would take in the presence of a known danger. Palmer v. Dearing, 93 N. Y., 7. The proof did not show, affirmatively, a want of care on the part of the deceased, and was guite consistent with the exercise of due care and caution in approaching the grating. Many loads of coal had been safely delivered down the hatchway under the same circumstances which existed on the morning of the accident, and.the driver had, therefore, some reason for supposing that the grating was sufficiently safe to afford him an opportunity of doing what he was apparently attempting to do. ■

■That he had some reason for taking the position where he was injured is- altogether probable, and it is unreasonable to suppose that he carelessly placed himself in a position to be injured. The evidence shows that he was observed immediately before the accident standing near his cart, which was then backed to within a foot of the hatchway where the coal was to be dumped; a moment after another coal driver coming up out of the hatchway was struck in the breast by the feet of the plaintiff’s intestate as he was borne to the earth by the grating. What happened in this short interval of ■ time was 'not observed by any eye witness, and we think it was within the province of the jury to say, in view of all the circumstances of the case, the usual -course of the business performed, and the motives which ordinarily influence men in their actions, how the deceased happened to be within the reach of the grating. Many well grounded inferences are possible from the evidence. His duty called him toward the grating, for it- was there that his work was to be performed. Extreme caution would have led him to examine it and to observe how it was fastened before backing his load under it. He might have discovered that it was not fastened and advanced to it for the purpose of obviating the consequences of the defendant’s neglect. He may have been engaged in the act of reaching for the rope which was said to pertain to the grating with a view of fastening.it to the spike in the wall, or possibly he was descending the hatchway to get his ticket signed, or to remove coal which obstructed the delivery of his load. It is quite improbable that he was there unnecessarily or in careless disregard of the •danger he incurred. The inferences we have suggested were those which might reasonably have been deduced from the evidence by the "jury, and we think it was error to take the case from it.

The rule in cases of non-suit requires that upon appeal all contested facts shall be deemed established in favor of the plaintiff, and the most favorable inferences to be drawn from the evidence must be assumed in his favor. Rehberg v. The Mayor, etc., 91 N. Y., 141.

In view of all the circumstances of the case it was therefore, we think, the province of the jury to determine the degree of care which the deceased was bound to exercise in respect to the apprehended danger; to infer the motive which led him to the hatchway, and to pass upon the question of negligence; and the court erred in preventing such determination.

The judgments of the courts below should be reversed and a new trial ordered with costs to abide the event.

All concur, except Peckham and Gray, JJ., dissenting on the ground that there was no evidence showing or tending to show negligence in the defendant, and no evidence that the deceased was himself free from fault or from which such an inference could properly be drawn by a jury, and that a verdict for plaintiff in such case would be based upon pure speculation. •  