text:
    Sarah Thompson, Resp’t, v. The City of Albany, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    ■1. Negligence—Contributory negligence—Icy pavement—Question eon jury.
    In an action for personal injury to the plaintiff, caused by falling upon the sidewalk in Wilson street, in the city of Albany, there was evidence offered by plaintiff tending to prove that while she was passing down said treet she stepped upon a portion of smooth uncovered ice by reason of which she fell and received said injury. That said street, at the point where plaintiff fell, had been in an icy and dangerous condition for several days prior to the time of the alleged injury; but there was no evidence of any actual knowledge or of notice to the defendant of the icy condition of the street. Plaintiff had discovered the icy condition two days before and shunned it, but at this time was walking at an ordinary gait, had good new rubbers on her feet and was walking carefully. Held, there was sufficient evidence for the case to go to the jury on the question whether plaintiff was chargeable with contributory negligence, and that the motion for a non-suit was properly denied.
    9. Same—When apprised op danger.
    .A party who is apprised of danger and exposure to injury must exercise care, or be chargeable with contributory negligence, which will prevent a recovery.
    3. Same—Presumption op -contributory negligence.

      Held, that the legal imputation of contributory negligence was met by proof that plaintiff wore, on that occasion, new rubber shoes, and that she walked very carefully That all that is, required is that the plaintiff establish the fact that there was no contributory negligence, by a preponderance of evidence.
    5. Same—Municipal corporation—When notice presumed.
    There was evidence tending to show that the icy condition of the sidewalk had continued three or four days before the accident, and that boys had been skating on it. Held, the question of constructive notice to the city was for the jury.
    Appeal from Albany county court, entered upon a verdict of a jury.
    The action was for a personal injury to the plaintiff, caused by a fall upon the sidewalk in Wilson street, in said city, claimed by plaintiff to have been occasioned by the negligence of the defendant in suffering ice to accumulate and remain on such sidewalk.
    The defense was a denial of negligence on the part of the defendant, and an allegation of contributory negligence on the part of the plaintiff.
    The evidence on the part of the plaintiff tended to prove that, on the evening of the 4th of March, 1886, while the plaintiff was passing down Wilson street, preceded by but in company with her daughter and son-in-law, she stepped upon a portion of smooth and uncovered ice, by reason of which she fell, and in falling broke or dislocated her wrist, and otherwise injured her person, for which this action was brought.
    The evidence offered by the plaintiff also tended to show that Wilson street, at the point where this injury occurred, had been in an icy and dangerous condition for several days prior to the time of the alleged injury, but there was no evidence of any actual knowledge of or notice to the defendant of the icy condition of the street, the testimony of the plaintiff herself showed that two days before the time of the injury she had discovered the icy condition of" this walk, and had shunned it by passing on the opposite side; that at the time of this injury she was walking at an ordinary gait, had good, new rubbers on her feet and was walking carefully.
    The evidence offered by the defendant tended to show that that walk was kept free from ice, or sprinkled with ashes, and to dispute the evidence of the plaintiff in rela-s tion to the condition of the walk at the time of the alleged injury.
    At the close of the plaintiff’s evidence the defendant moved to dismiss the complaint on the ground, mainly, that the plaintiff had failed to show negligence on the part of the defendant, and had not shown herself entirely free from contributory negligence, which motion was denied.

      Lewis Cass, for resp’t; D. Cady Herrick, for app’lt.
   Mayham, J.

The appellant insists that the judge, at the trial, erred in refusing to non-suit the plaintiff, on the ground that the plaintiff had failed to prove that there was no contributory negligence on her part.

We think the evidence in this case was sufficient to justify the submission of that question to the jury as a .question of fact.

It is true that the plaintiff testified that she knew of the icy condition of the sidewalk, that she had seen it on a previous occassion and avoided it by passing along the middle of the street, and that she saw it at the time of the injury, and that she saw it as she turned from Pearl to Wilson street, it ran from Pearl down to the third house. This knowledge was enough to require her to exercise caution, and the law seems to be well settled that a party ■who is apprised of danger and exposure to injury must ■exercise care, or be chargeable with contributory negligence which will prevent a recovery. Salter v. Utica and Black River R. R., 75 N. Y., 276.

Such knowledge would doubtless cast upon the plaintiff the onus of proving care, and producing evidence on her part to relieve her from the legal imputation of contributory negligence. But this evidence was met by proof in the case by the plaintiff, that she wore on that occasion new rubber shoes, and that she walked very carefully. This evidence, while perhaps it might have been excluded as a conclusion of the witness if objected to, was received without objection, and constitutes evidence in the case which the jury had a right to consider, and if they found with the plaintiff upon that evidence, the court would not interfere to set aside the verdict for the want of evidence to uphold-it. It, therefore, under the circumstances of this case, became a question of fact, which it was the duty of the judge to submit to the jury.

In Evans v. City of Utica, the court of appeals say: “The question whether the plaintiff was chargeable with contributory negligence was a question of fact which was properly submitted to the consideration of the jury, and unless it is apparent that the finding of the jury was # entirely unauthorized, there is no valid reason for holding that there was error in this respect.” 69 N. Y., 168.

In that case the facts are somewhat similar to those of the case at bar. The action was for injury by falling on an icy sidewalk. The plaintiff saw and had knowledge of the ice before he fell, and talked with his travelling companion about it, remarking that it was very slippery. The defendant upon this evidence moved to non-suit the plaintiff on the ground of contributory negligence, which was refused. And the court of appeals held that it presented a question of fact for the jury.

In Pomfrey v. Saratoga (34 Hun, 609), this court, Peckham, J., says: “ Whether plaintiff was guilty of negligence in seeking to pass over the obstruction even where she saw it, was a question of fact.” And this doctrine in the case last, cited has been sustained in the court of appeals. To the-same effect is Bullock v. City of N. Y. (1 East. Rep., 170; also 99 N. Y., 654). Within these and the great current of authorities in this state, we think the motion for non-suit, on the ground of contributory negligence was properly denied.

It is also insisted on the part of the appellant that there-was no evidence of notice to the defendant, either actual or constructive, that this sidewalk was in an icy and dangerous' condition, and that the plaintiff ought not for that reason to recover.

The case does not show actual notice of the condition of the walk to the defendant, and as the defendant asked the-court to nonsuit the plaintiff, on the ground that there was. no proof of notice to the city of the condition of the street) it is important to inquire whether the dangerous or slippery condition of the walk was so apparent and notorious and of such long standing as to be constructive notice to the defendant sufficient to authorize the submission of that question to the jury. Julius Mende, one of the plaintiff’s witnesses, testified that the condition of that walk at and about that time was icy; the ice extended from the corner of North Pearl street, down Wilson, extending past three houses; saw it on Sunday, and then a couple of nights before the Thursday the day of the injury; it had been therefor a number of days. Henry Fitch, another of plaintiff’s, witnesses, testified that he went over this walk occasionally a dozen times a day; the day Mrs. Thomson fell it was in a, very bad condition, very slippery that day in the afternoon; saw children skating on the sidewalk with ice skates every day from two or three days before that. Ella Lyons, another of plaintiff’s witnesses, testified to sliding there two or three days before plaintiff was injured. Plaintiff testified to ice there, two days before the injury. Burns, swears that there was no precipitation of rain or snow to produce ice on or after the twenty-seventh of February up to and including the fourth of March.

We think the evidence sufficient to take the case to the-jury upon that question as one of fact. It is true that this, theory was corroborated by evidence as to the condition of this walk offered by the defendant, but as that tended to-present a disputed question of fact, it was proper for the-consideration of the jury.

We think this case much stronger on rhe question of constructive notice than that of Muller v. City of Newburgh, relied upon by the defendant. In that case, snow-had fallen on Thursday, which was softened by rain and then frozen, and the injury occurred on Sunday following; and the court say: “We cannot say that it had remained so long as to become notorious or to justify the inference of notice to the municipal authorities that it was there,” and upon the question of its notoriousness the court adds: “In fact the -plaintiff testified that he walked down and up there the day before and did not see the ice on the pavement.”

In Todd v. City of Troy, the court hold, that after a. street has been out of repair so that the defect becomes public and notorious to those traveling the street, and the. city has had opportunity to repair the same, the law imputes notice and charges it with negligence. Rehberg v. City of New York, 91 N. Y., 137; Todd v. Troy, 61 id., 509.

And in Rehberg v. City of New York the court holds that the question whether the city had time to remove the danger after notice was a question of fact properly submitted to the jury. In Kenny v. City of Troy, the court uses the following language, “A smooth, slipping surface may be dangerous to travelers, and such condition of danger should be remedied in a case like the present, or liability for injury to him, because if it would follow, so be it that the city had notice, actual or constructive and in due time after notice omitted to remedy it * * * the injured traveler himself being far from fault. I am clearly of the opinion that this case was for the jury on the proof.” And in the same case Learned, J., says: “I think great difficulty will be found if the courts attempt to declare as law what time the obstruction must have existed in order to permit the question of notice to go to the jury.”

Nor do we think the judge erred in not charging in the language of the defendant’s second request to charge; the request was to lay down an abstract proposition which may have been correct in itself, but which we think was sufficiently answered by the judge. The request was:

“ That, where the circumstances point just as much to negligence on the part of the plaintiff as to its absence, that then the plaintiff must fail.” To this the court responded: “ No, I have covered that sufficiently in the charge that the plaintiff must establish the fact that there was no contributory negligence, that she was free from contributory negligence by a preponderance of evidence.” We think this a correct statement of the rules upon this subject.

Having laid down the correct rule upon the subject thus explicitly we cannot see that it was error for the judge to direct a charge as requested in the defendant’s fifth request. The request went too far; if followed, the jury would have "been authorized to find that it was the duty of the plaintiff to leave the sidewalk to avoid the possibility of injury. This she was not required to do.

. In Rehberg v. City of New ~York (91 N. Y., 656), the court of appeals say: “The plaintiff had a right to use this walk, although she knew its condition, and whether she was guilty of carelessness, which contributed to the accident, was a question for the jury.”

Nor do we think the court was called upon to lay down the rule in this case asked for by the learned counsel for the defendant in his fourteenth request to charge. There were no facts in this case to which such a request was applicable. But if there were we think the rule laid down in Kenny v. Troy (38 Hun, supra,) would justify the judge in refusing to declare, as matter of law, what length of time would raise presumption of notice.

On the whole case we do not see any error on the trial which calls for a reversal of the judgment in this case.

The judgment of the county court must be affirmed with costs.

Learned, P. J., concurs; Landon, J., not acting.


source: Caselaw Access Project

author: Learned, P. J. Mayham, J.

license: Public Domain

text:
    Samuel N. Bacon, App’lt, v. The United States Mutal Accident Association, Resp’t.

      Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Insurance (accidental) policy—Interpretation of—Poison.
    In an application for insurance in the defendant association the insured stated that he was aware that the benefits would not extend to death or disability caused wholly or in part by taking of poison in any form or manner. The certificate issued corresponded with the applications in its provisions. Held^ that the word poison therein used should be taken in its ordinary meaning of a substance taken internally seriously injurious to health and often fatal to life.
    2. Same—Cause of death—Violent and external.
    The policy contained the provision that the beneficiary named therein should, in event of the death of the member insured previous to her own, be paid a sum to be raised as therein prescribed within sixty days after proof, that said member, at any time within the continuance of membership, had sustained bodily injury effected through external, violent and accidental means within the intent and meaning of the by-laws of said association and the conditions thereto annexed, and that said injury alone had occasioned death within ninety days from the happening thereof. The death of the member insured was caused by a disease produced by the contact of the thin skin of the lips, or an abraded part of the body, with putrid animal substance. Held, that the means of death were violent and external.
    S. Same—Evidence justifying verdict against insurer.
    There was evidence that the insured worked in a locality where raw hides were habitually handled, and that he was engaged in the butchering business and that the disease which caused his death was one common in such localities and resulting generally from causes accompanying such occupations. Held, that the jury were justified in finding a verdict in favor of the assignee of the policy.

      Stedman, Thompson & Andrews, for app’lt; Wm. Bro. Smith, for resp’t.
   Learned, P. J.

In the application the insured stated that he was aware that the benefits “will not extend * * to death or disability caused wholly or in part * * by taking of poison in any form or manner.”

In the certificate the corresponding phrase is that benefits “shall not extend * * to any death or disability which may have been caused wholly or in pairt * * by poison in any manner or form.”

The application refers to the certificate, the certificate to the application; the two explain each other, and show that the word “poison” therein is used in its ordinary meaning, of a substance taken internally, seriously injurious to health and often fatal to life. The word “taking” is omitted in the certificate, but not for any change of meaning. “Death by poison” is well understood inordinary language. It is a phrase which would never be applied to death from a rattlesnake’s bite, although that injects into the circulation what may be called a poison. In certain cases death comes from what is called “blood poisoning.” One who dies from a bullet wound may die of “blood poisoning;” but he does not die by poison in the ordinary use of the word.

The insured died from what is known as malignant pustule. This is invariably, according to the testimony, “by the infliction of animal substances upon the body;” by the accidental deposit of this putrid and poisonous animal substance.

This is usually communicated from the bodies, or skins or hides of animals which are suffering with this peculiar kind of disease.

The substance may be carried by flies that have been feeding upon it. The disease may come by the application of the person himself of his hand, which has been in contact with this substance, to some abraded surface of his body. And the substance may be absorbed by the thin portions of the lips, though they are not abraded.

Thus it appears that the cause of death in this case was a disease produced by the touching of an abraded part of the body, or of the thin part of the lips, with a putrid animal substance.

The question then is whether the deceased “sustained bodily injuries affected through external, violent, or accidental means; and whether such injuries alone occasioned death within ninety days from the happening thereof ?”

The deceased had lived in Southbridge, Mass. The early part of February, 1884, he went to Council Bluffs, Iowa. There he worked in a meat market and in a railroad freight office, a place where hides and cattle were received to a considerable extent. He died there1 March 21st. There were on his body, upon his lip, external indications of the pustule, which is the beginning point of the disease. Thus there was proof that there was an “external and visible ” sign of the injury. The defendants, in their correspondence, insisted that they were not hable because the deceased died from a carbuncle, the result of disease. This they said they had ascertained at the place of his death. And they further claimed that, even if the disease was malignant pustule—“ malignant pustules arise from various causes not accidental.” Thus they took the position that, whatever the disease, the cause was not external or accidental. If that were so, they would not be liable. But the positive testimony of the physician on the trial, not contradicted, shows that the death was not from carbuncle, the result of disease, but from malignant pustule, as above stated; and the evidence was sufficient to go to the jury upon the point that the cause arose within the ninety days prior to death.

The means through which deceased came to his death were external. The positive testimony of the physician shows this. The putrid animal substance, reached the body, not through the stomach or the lungs, but through the skin, the external covering. The cause was external as much as the crushing under a car or the bite of a rattle snake would have been. Hill v. Hart. Acc. Ins. Co., 22 Hun., 187.

Next, were the means accidental? They cannot be thought otherwise. It is too improbable to suppose that the deceased intentionally put his hand, infested with putrid meat, upon his lip in order to produce death. If he had intended to commit suicide, this would not have been the mode selected. By whatever direct means the putrid substance was brought into contact with his face, the contact must have been accidental. Mallory v. Trav. Ins. Co., 47 N. Y., 53; Ins. Co. v. Burroughs. 69 Penn. State, 43.

The most difficult and perplexing point remains: Were the means violent? Suppose the fact to have been that an insect which had been feeding on the putrid meat after-wards alighted on the deceased’s face, and even pierced the skin; was this violent? Or suppose the fact to have been that the deceased himself placed his own hand, infected with this putridity, on his face, was this violent?

It may help us to understand the meaning, put in this word “violent,” by the defendants, if we examine some of the exceptions made by them. The certificate says that no claim can be made when death has been caused by lifting, over exertion, sunstroke or freezing. Now as these are made exceptions, it is reasonable to understand that, without special exception, they would have been within the language “ violent ” means. Yet sunstroke and freezing do not import physical violence any more than does drowning. New v. Ins. Co., 6 H. &. N., 845.

We say a man dies a violent death without necessarily implying anything more than he dies not in the ordinary course of nature and disease.

If by “violent” is meant physically violent, or forcible, then how great must be the force? Is it not enough, however small it be, if it produces death or bodily injury? A poisoned arrow may make a small wound, but if it produces death, is not that a death by violent means? A rattlesnake bite may be hardly perceptible. It is hardly possible that this certificate is to be considered as insuring against death from great violence, and not against death from a slight blow.

There is an exception in this certificate of self-inflicted ” injuries, but that must mean intentionally self-inflicted. It cannot be a self-inflicted injury when one accidentally stumbles and. falls down stairs, breaking his leg. So that even if this pustule came by the contact of the deceased’s own hand, yet it could not justly be called a self-inflicted injury.

The case of Searles v. Man. El. R. W. Co. (101 N. Y., 661.), was one where the accident might have been occasioned by either one of two causes, a cinder from the smokestack, or one from the ash-pan. For the former the defendant would not be hable. For the latter they might. In the lack of evidence which is the real cause, defendants, would not be held liable.

But there is no uncertainty in this present case. There was no dispute as to the cause of death. Plaintiff: had another witness, but the court did not care to hear any more.

The defendants urge as a defense that in the preliminary proofs of death, the cause of death was given as: “A small pimple on face became anthrax.” But if this were incorrect, it was in no way binding on the plaintiff. The real cause was unquestionably proved at the trial. And the question here must be decided on the undisputed facts testified to by the physician. Indeed, while the preliminary proofs are not full as to the cause which produced the pimple, they are not inconsistent with the testimony on the trial. And the cause of the pimple having been proved on the trial, the question is. fairly before us whether that cause is within the meaning of the certificate.

And in deciding this we think that the defendants in their correspondence showed a correct view of the general principles when they said that the death was not by accident, but by disease. That must generally be. the distinction. This is an accident policy. If the deceased died from disease, as distinguished from accident, plaintiff cannot recover. If deceased died from accident, as distinguished from disease, he can.

Now, undoubtedly accidents and external injuries often produce death through the disorganization of internal organs. Still the accident is the cause. On the other hand, it is said that impure water taken into the stomach, or impure air into the lungs, cause fever. But these fevers are diseases, having their origin internally. They are not. the results of accidents.

But in this case there is just what the defendants evidently believed there was not, an external and accidental cause, and not an internal disease manifesting itself externally.

Guided by this general view of the deaths and injuries, against which the certificate was intended to insure, we think that this plaintiff should not have been non-suited.

Judgment reversed, motion granted, costs to abide event.

Landon and Mayham, JJ., concur.

Mayham, J.

The plaintiff brings this action as assignee of an accident insurance policy, issued by the defendant to Frederick J. Oaks.

The complaint alleged the incorporation of the defendant, the issuing of the policy alleging its conditions, the sustaining of bodily injury by the assured, of which he died, the assignment of the policy to the plaintiff, the making of proof of death and demand of payment.

The answer admitted the incorporation of the defendant, alleges the application by said Oaks for certificate of membership, under the conditions prescribed by the rules and by-laws of the association, the payment of the fee for membership and the issuing of the certificate of membership or policy with reference to the conditions thereof, and a denial of any knowledge or information sufficient to form a belief of the other facts alleged in the complaint.

On the trial the plaintiff offered and read in evidence the policy of accident insurance issued by the defendant upon the life and person of Frederick J. Oaks, dated September 28, 1883; amount to be paid to Mary Jane Oaks. The policy contained this provision: “ The principal sum represented by the payment of two dollars by each member in division ‘ AA’ of the association, as prescribed by the by-laws (which sum, however is not to exceed $5,000), to be paid to Mary Jane Oaks (his mother), if surviving (in the event of prior death of said beneficiary, or any of them, said sum shall be paid as prescribed in the by-laws), within sixty days after sufficient proof that said member, at any time within the continuance of membership, shall have sustained bodily injury effected through external violent and accidental means within the intent and meaning of the by-laws of said association and the conditions hereto annexed, and said injury alone shall have occasioned death within ninety days from the happening thereof.” The policy also contained a proviso “that benefits under this certificate should not extend * to any bodily injury of which there shall be no external or visible signs * nor to any death or disability which may have been caused wholly or in part by bodily infirmity or disease existing prior or subsequent to the date of this certificate, or by poison in any manner or form.”

In the application the assured signed an acknowledgment that the policy did not extend to death or injury * * caused wholly or in part by taking of poison in any form or manner. The plaintiff also put in evidence the assignment of the certificate from Mary Jane Oaks to the plaintiff, also the proofs of death of Frederick J. Oaks, at Council Bluffs, Iowa, on the 21st day of March, 1884. The proof showed that Council Bluffs was a place where cattle and-hides were extensively shipped, and "that about the time of his death Frederick J. Oaks worked at Council Bluffs in a meat market and in the freight office of the Union Pacific Railroad at that place.

The plaintiff then proved, by a medical expert, that he made a post mortem examination of Frederick J. Oaks, and ascertained that the cause of his death was the infliction, upon a portion of his body, of a putrid animal substance which, working through the system, caused him to die from affections of the different internal organs of the body * * the name of the manifestation of that infliction is known in medicine as maligant pustule. It is produced invariably by the infliction of animal substance upon the body. ’ The witness further testified that this was caused by an accidental deposit of this material there, and is usually communicated from the skin or bodies of animals which are suffering from this peculiar disease found in their hair. After stating various methods • by which this virus might be communicated, the witness stated that*it produced blood-poisoning and when produced he stated the practical effect of blood-poisoning is the same from whatever cause produced. Witness also stated that as to the method in which this carbon virus became implanted upon this young man’s lips he could not say.

The plaintiff also put in evidence a letter from the company declining to pay on the ground.that there was no valid claim, under the certificate of membership, claiming that deceased died from septiamia from carbuncle of the lower lip. It was admitted that the defendant sent out the printed blank for the application for membership.

Upon this evidence the defendant asked the court to direct a verdict for the defendant on the ground that it appeared from the pleadings that death was produced from a cause not covered by the policy, and that the proof does not warrant a verdict for the plaintiff.

The plaintiff’s counsel objected and asked the court to allow the plaintiff to go to the jury on all the evidence in the case. The plaintiff’s counsel also asked the court .to direct a verdict of $5,000 for the plaintiff, which the court refused, and directed a verdict for the defendant, on which judgment was entered, and the plaintiff appeals to this court.

Two questions are raised and principally relied upon by the appellant on this appeal:

First. Whether the causes which produced malignant pustule, as shown by the undisputed evidence of Dr. Hump, constitute external, violent and accidental means within the meaning of that phrase, as written in the policy.

Second. Whether the proof in this case was sufficient to authorize the jury, if the case had been submitted to them, to find that the death of the assured was caused by external, violent and accidental means, producing death within ninety days from its infliction.

Before the plaintiff can recover in this action, he must, by proof, establish both these propositions, by evidence either direct or circumstantial, such as would sustain the verdict of the jury if they found in his favor.

The uncontradicted evidence in the case is that “the cause of death was the infliction of a portion of the body of a putrid animal substance which worked through the system, causing him to die from affections of the different internal organs of the body * * The name of the manifestation of that infliction is known in medicine as malignant pustule; it is produced invariably by the infliction of animal substance upon the body; after a period of time, varying in different cases, there appears a viscutar blister-like affair, a pustule. It can only come from one single cause, because it is a specific thing, as much as the venom of a rattlesnake bite or hydrophobia. I am prepared to say that this was caused by the infliction of this virus; as to the manner in which that carbon virus became implanted upon the man’s lip I cannot say * * It starts with a little bite or blister, which becomes a pimple—a pustule, and it rapidly becomes mortified, cankerous; that is what we call malignant pustule.” The evidence further shows that there were external indications upon the person of young Oaks of this nature—that the result was blood poisoning; that it was not produced by any other than external causes. From this evidence the jury would have been authorized to have found that this injury which resulted in the death of the assured was produced by external and accidental means. Could they also have found under this evidence that these means were violent within the fair meaning of the certificate ?

Violent in its ordinary acceptation of the term, means not natural or spontaneous; not intentional, voluntary, expected or usual.

The degree of force is not always material. In this view of the case the bite of a fly, or spider, or the sting of a bee, may be as well characterized as violent as the bite of a rattlesnake or the sting of a scorpion. It is not quite clear that the parties to this contract on either side in making and accepting this certificate, intended to embrace this kind of violence as a condition creating a liability under this policy, but it is a familiar rule of construction that unless the instrument clearly expresses to the contrary, words are to be construed in their ordinary sense; and applying this rule of construction to the evidence in this case, we do not see why the cause of death was not' from external violent and accidental means', and we think the following cases substantially sustain this view:

In Winspear v. Accidental Ins. Co. (42 L. T., Ex. Div., 900), the policy was substantially like this, in that the death was caused by assured falling in the water in a fit of epilepsy and drowning; it was held that it was a personal injury caused by accidental external visible means within the intent of the policy, and that a recovery could be had. See comments in 22 Alb. L. Journal, 223-4.

In Ins. Co. v. Burroughs (69 Penn. St. Rep., 43), the court say, if the injury be accidental and the result of it is death, what matters it whether the injury is caused by a blow with a pitchfork or a strain in handling it? And they define an accident as an event that takes place without one’s, foresight or expectation—an event which proceeds from an unknown cause or the unusual effect of a known, and therefore not expected, chance, casuality or contingency, “happening by chance, or unexpectedly taking place not according to the usual course of things—casual, fortuitous. ” Ins. Co. v. Burroughs, 69 Penn., 43.

In Mallory v. The Travelers’ Ins. Co. (47 N. Y., 53)," it-was held that when the assured was found dead in a pond, with a bruise upon his head, that the jury might infer that if the wound did not produce death, but caused him to fall in the water where he was drowned, that the death was produced by accident within the terms of an accidental policy; and this rule is not changed by the decision of the court of appeals in Searles v. Manhattan Elev. R. R. Co., 101 N. Y., 661. The injury resulting either from the wound or drowning would be from external accidental means. So in the case at bar. If we are to credit the undisputed evidence of Dr. Humps, the injury was from accidental, external, violent means within the definition of those words given above in the cases cited.

If right in the above conclusion, the next inquiry is, would the proof offered justify the jury in finding that the death of the assured, if produced by the causes above disdussed, justify a finding that those causes produced the death of the assured within ninety days of the infliction of the injury.

Upon this subject there is no direct proof, but the plaintiff insists that the proof that this attack is usual in locations where cattle are numerous, and where raw hides are habitually handled, and that the deceased was engaged in the butchering business in Council Bluffs, and also in the freight office where hides are shipped extensively, and that he was in that exposed locality only from the first of February, 1884, to the twenty-first of March of the same year, was sufficient evidence to go to the jury upon the question of the time when the injury which resulted in death was inflicted, and that the jury would have been authorized from that evidence to have found that ninety days had not elapsed from the time of the injury to the death.

We are of the opinion that if that question had been submitted to the jury, and from it they had found for the plaintiff, their verdict could not have been set aside as not supported by the evidence. ■

On the whole case, we think that there was enough evidence to authorize its submission as questions of fact to the jury, and that it was error for the court to take the case from them and direct a verdict, and for that reason the judgment should be set aside and a new trial ordered, costs to abide the event.

Landon, J., concurs.


author:
Landon, J.
      Learned, P. J.

text:
    People ex rel. Abel S. Myers v. The Town Auditors of the Town of Highland.

      (Supreme Court, General Term, Third Department,

      Filed May 24, 1887.)

    1. Mandamus—Not proper remedy in case of rejection of a claim as illegal by town auditors.
    In an action brought in a justice’s court by a highway commissioner to recover penalties against a delinquent overseer, judgment was obtained against the plaintiff, and upon appeal by him taken to the county court was affirmed. The amount of this judgment, together with the expenses of the litigation, was by him paid, and on presentation by him to the board of town auditors of his claim for reimbursement it was by them decided that the town was not liable therefor. Held, that there was a valid distinction between the refusal to audit a bill, and the rejection of it as a legal claim after audit, and that in the latter case the board was not compellable, by mandamus, to reverse their decision. That the remedy for an erroneous decision of the board, if any, must be sought by way of certiorari. Learned, P. J., and Mayham, J., concur; Landon, J., dissenting.
    2. Highway commissioners—Judgment against in official capacity is town charge—1 R. S., 375. § 8.

      Held, that the judgment in the county court recovered against the commissioner in the name of his office in an action which he was authorized to bring was a town charge. 1 R. S., 357, § 8. Landon, J.

      3. Same—Judgment enforceable by execution—Reimbursement—Code Civ. Pro., § 1931.

      Reid, that an execution in such action would issue against the commissioner, and that the sum collected thereby should be allowed him in the settlement of his official accounts (Code Civ. Pro., § 1931), and that this not having been<done, the only way open to him was to have the board of town auditors include it in their statement and certificate of town charges to the board of supervisors. Landon, J.
    4. Same—May of his own motion prosecute delinquent overseers.

      Reid, that the commissioner was authorized to prosecute a delinquent overseer upon his own motion, if, in his judgment, the public interest required it.
    8. Same—Recourse to the town—Not cut off by adverse judgment.

      Reid, that his failure to recover in such an action did not deprive him of his recourse to the town; that he was not required to guarantee the success of litigation set in motion by him within the scope of his official-duties.
    6. Same—Appeal from adverse judgment discretionary.

      Reid that it was within the power with which the commissioner was vested to appeal from an adverse judgment rendered in such an action.
    Upon the trial before the Ulster county circuit of the issues framed by a writ of alternative mandamus and the return, the court at the close of the testimony dismissed the proceedings and directed that the exceptions be heard in the first instance at the general term. The relator now moves for a new trial.
    The relator was sole commissioner of highways for the town of Highland, for the year 1882. He appointed one Hickok overseer of highways for road district No. 3, and also appointed an'overseer for each of the road districts Nos. 12,18 and 27. He issued road warrants to each of these overseers. The overseers in the three districts last named thereupon resigned their respective offices, their resignations were accepted by the relator, and he thereupon made an order abolishing districts No. 12, 18 and 27, and extending the bounds of district No. 3 so as to include within it the same territory and the same assessments which were embraced in the abolished districts. The warrant to Hickok was amended so as to embrace the added territory and assessments. Hickok consented to act as overseer of district No. 3.
    The relator being commissioner and Hickok overseer of highways, the relator required the overseer to proceed to discharge, in a manner indicated by him, certain duties respecting the highways in his district; also to proceed to enforce certain fines and penalties alleged to have been incurred by certain delinquents. The overseer refused, and the relator sued him, in a justice’s court to recover the penalties prescribed by the statute against a delinquent overseer.
    Two trials were had in the justice’s court; the juries not agreeing, the relator withdrew his suit, paid the costs, and then brought another suit against the overseer before another justice, was beaten, appealed to the county court, where he was again beaten. He paid the latter judgment, 876.10. He also paid $80.15 for expenses in these suits in addition to the judgment.
    He expended as commissioner of highways, in repairing the roads and bridges that were damaged after the town meeting of 1881, $128.17 of his own money. This sum was found due him by the board of town auditors, March 4, 1882.
    All these bills were presented to the board of town auditors for audit, and to be certified to the board of supervisors. The board of town auditors examined the bills and refused to allow them. They were again presented to the board of town auditors in 1885, duly verified. The board of auditors was requested to audit the bills for costs and expenses, and to include this audit, and the amount of the judgment and the amount found due the relator in March, 1882, in its certificate and statement of the town charges to the board of supervisors.
    The board of auditors refused and the writ of alternative mandamus, the return, and the trial followed.

      T. F. Bush, for app’lt; John F. Anderson, for resp’ts.
   Landon, J.

The judgment in the county court was recovered against the relator in his name of office in an action which he was authorized to bring The judgment was a town charge. 1 R. S., 357, § 8.

An execution, however, would issue against the relator; he was, therefore, obliged to pay the judgment. Code Civ. Pro., § 1931. This section requires that the sum collected must be allowed the officer in the settlement of his official accounts, except as otherwise specially prescribed by law.

It appears that this sum has not been allowed the relator in the settlement of his official accounts, and the only way open to him to obtain it is to have the board of town auditors include it in their statement and certificates of the town charges to the board of supervisors.

The defendants, however, object; that the relator is not entitled to be reimbursed the amount of this judgment:

1. Because he brought the action against Hickok, the overseer of the highways, upon his own motion and not upon the complaint and indemnity of any resident of the town.

2. He was defeated and, therefore, had no cause to bring the action.

3. As he was beaten in the justice’s court he had no right to appeal.

4. The account had once before been presented to the town auditors and rejected:

First. We think the commissioner may prosecute a delinquent overseer upon his own motion, if in his judgment the public interest requires it—that is, if he does so in good faith.

The commissioner of highways is charged both with the power and the duty “to give directions for the repairing of roads and bridges” (1 R. S., 501, § 1), and to enjoin certain duties upon the overseer, whose duty it is to obey under peril of penalties to be sued for by the commissioner. Section 16. Unless the commissioner can of his own motion sue for these penalties he is denied the means to enforce his authority.

The seventeenth section provides that the commissioner shall upon complaint made to him by a resident of the town that the overseer has refused and neglected to perform any of such duties, and upon giving or offering to give sufficient security to indemnify the commissioner against the costs, forthwith prosecute such overseer for the penalty.

Authority implies power to enforce it. The seventeenth section is clearly an additional provision to compel the commissioner to use the power he possesses, not a condition precedent to his possession of the power.

Second. That the relator failed to recover in his actions against the overseer, does not deprive him of recourse to the town. The law is not so unreasonable as to require a public officer to guarantee the success of a litigation in which he may within the scope of his official duties become involved. In good faith, perhaps not wisely, he sought to exercise a power with which he was clothed. The power to bring the action implies the power to incur its charges. The People ex rel. Van Keuren v. Town Auditors (74 N. Y., 310), is cited.

The difficulty with the relator in that case was, he thought he was lawfully acting as an overseer of highways in removing an obstruction from a public highway, and he found out on the trial that he was simply an individual trespasser upon the private road of the person who sued him. The court held the town was not obliged to reimburse him for the judgment and expenses he incurred in his law suit with the person whom he had no official or personal right to injure. If in the suit with Hickok it had been shown that Hickok was not an overseer of highways either de jure or defacto, then this relator would have been outside of the statute and its protection, because he would not have sued an overseer, and the case cited would have been in point.

Third. But this case cited is claimed to be authority for the position that the relator having been beaten in the justice’s court had no right to appeal solely upon his own motion. That was held true of an overseer who was the subordinate of the commissioner, and who committed the trespass complained of in obedience to the orders of the ■commissioner in the belief that his action was lawful. In such case it was said that if he could look either to the commissioner or to the town as his immediate superior, he was entitled to indemnity against the natural consequences of having innocently performed their unlawful requests, but having once been beaten he could not enhance the damages by continuing, by appeals, the litigation without the ■consent of one or the other.

In this case the commissioner is the officer charged with instituting and carrying on this litigation against the overseer, Why he was defeated we do not know, but he was clothed with the power, and, hence, with the judgment and discretion applicable to the case.

Fourth. The fact that the town auditors had once before refused to audit and certify this judgment does not defeat the relator’s right. The law says it shall be allowed him; the town auditors are the officers to give effect to the law. They cannot, by their perverseness or misjudgment, repeal it, and we see no reason why that duty does not remain in full force until it is performed. The People ex rel. Thurston v. Town Auditors, 82 N. Y., 80.

To reject the bill altogether is a refusal to audit what the law says shall be allowed. Such a claim differs from the ordinary unliquidated claim in this respect. In the former the board of town auditors have no jurisdiction of the amount of the claim, in the latter they have. It is true that it is remarked in People ex rel. Everett v. Board of Supervisors (93 N. Y., 404), that the provision requiring the claim upon the judgment to be presented to the board of town auditors implies the power on their part to reject it altogether, but this remark is obiter.

If, as we think, the relator had a clear, legal right to have this claim allowed him, and that right was denied or refused, there is nothing to review upon certiorari, and mandamus is his only remedy.

The foregoing views dispose of the relator’s other claims adversely to him. When they were rejected we cannot say, as in the case of the judgment, that the claims were not judicially examined and disallowed. If so, the relator is bound by the decision of the board of town auditors unless he brings certiorari to review it.

It follows that the relator is entitled to a new trial, cost to abide event.

Learned, P. J.

The case says* “It is admitted that the bills were presented to the board of town auditors of 1885; that they examined them, and decided that the town was not legally liable to pay for the whole, or any part of them, and rejected them. The same admission is made as to the action of the board in the year 1883.”

The distinction between auditing a bill and rejecting it, on the one hand, and refusing to audit on the other may seem small, but it. is real.

It is pointed out in People ex rel. v. Town Auditors of Elmira (82 N. Y., 82), where the court say: “That if the bill had been in fact audited, the mandamus was improper, otherwise right.” In that case the board “assumed the right to allow what they pleased without disputing the facts on the one hand, or the law on the other.”

Now, in the present case, the stipulation says that the board examined the bills and decided that the town was not legally liable. That plainly means, that without disputing the facts, they did dispute the law. Therefore the board made á decision.

Grant that it was erroneous, it was a decision. Can we by mandamus compel them to decide otherwise ? I think not. If there was an erroneous decision of law, the relator’s remedy, assuming that he had any, was by certiorari. Code Civil Procedure, § 2140, subd. 3. If, without competent evidence, the board had decided the facts against the relator, he would not be without remedy. Subd. 5.

Thus, again, in People ex rel. v. Board of Apportionment (52 N Y., 227), it is said, “to audit a claim ex vi-termini imports the exercise of judgment.” Again, it was said of a mandamus to audit: “This submits to the officers the power of determining ‘pro hac vice ’ the legality of the claim as well as its amount.” People ex rel. v. Cooper, 24 Hun, 340. To the same effect, People ex rel v. Supervisors, 93 N. Y., 404. So People ex rel v. Fairman (12 Abb. N. C., 272, affirmed general term and court of appeals), which seems quite in point.

Now there are certain cases in which an auditing board has to exercise its judgment upon the amount of a claim. In such cases, if the board refuses to exercise its discretion, mandamus has been held to lie to compel this exercise of discretion. Possibly it would be difficult to make certiorari applicable, where the inferior tribunal had not decided on the question of facts. See People v. Supervisors, 45 N Y., 199.

But in the present case there is no discretion which the board has refused to exercise. The amount of the claim on the judgment against relator was fixed. If it was a legal claim, the refusal to allow it was an error of law—an incorrect decision; to be reviewed, as it seems to us, by certiorari.

But again, what would the mandamus command ? Not certainly that the board should allow relator’s claim. We are not by mandamus to direct an inferior tribunal how to act. The command would be only to audit, that is, to examine and pass upon the claim. But this the defendants have already done. See remarks in People ex rel. v. Town Auditors of Elmira, supra.

I think the judgment should be affirmed, with costs.

Mayham, J., concurs.


author: Earl, J.

text:
      In re Petition of Lewis H. Clark, a Taxpayer, etc., App’lt, v. Andrew F. Sheldon, as County Treasurer, etc., Resp’t.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Taxes—Railroads—Laws op 1869, chap. 907, § 4—Construction op— Purchase op bonds by county treasurer.
    Laws of 1869, chapter 907, section 4, as amended in 1871, chapter 383, direct that “all taxes, except school and road taxes. * * * in any town or village or city, on the assessed valuation of any railroad * * * for which it has issued bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county, etc.,” and he must purchase bonds, to “be held by said county treasurer as a sinking fund for the redemption of the bonds to be issued * * * in the construction of' said railroad, etc.” If he refuses to do so, any taxpayer may apply to the county judge for an order compelling him to do so. Held, that the act obviously means all the taxes of every description, including town, village,, city, county and state taxes, except school and road taxes, and the authorities have no right to direct or appropriate these taxes to other purposes.
    3. Same.
    The taxes are to be levied the same as other taxes, and if a deficiency is caused in funds required for town, village, city, county and state purposes the local authorities must make provision therefor.
    3. Same.
    The provisions of the act apply to any railroad and not merely to the case of railroads constructed under the act of 1869 and the amendments thereto, and to all municipalities bonded in aid of railroads constructed through them.
    4. Same—Act is constitutional.
    The provisions of section 4 are not in conflict with any constitutional provision, as by it the legislature merely devoted all the taxes imposed upon the railroads to town, village or city purposes; which it had a right to do
    5. Same—Constitution, art. 7, § 8.
    It did not violate article 7, section 8 of the constitution, as the fund was. not in the treasury of the state, and never belonged to the state, or to any fund under its management.
    6. Same—Constitution, art. 3, § 30.
    Nor did it violate section 30 of artitle 3 of the constitution, as it simply specifies what may be done with a tax which has been legally imposed.
    7. Same.
    It is no defense in an application by a taxpayer under this act that the petitioner did not pray for a sufficient amount, and that the county treasurer might be taxed with further proceedings to set aside a further amount. If the county judge orders him' to set aside a less sum than he ought to, he cannot complain.
    8. Same.
    Nor can the treasurer answer that if he should set aside these taxes for a sinking fund, there would be a "deficiency in other funds.
    Appeal from an order, supreme court, general term, fifth department, affirming order of the county judge, dismissing the proceeding of petitioner herein.

      Z. Welling, for Clark, app’lt; C. H. Roys, for resp’t.
   Earl, J.

This is a special proceeding instituted by a taxpayer of the town of Sodus, Wayne county, in this state, to compel the county treasurer of that county to execute the provisions of section 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. The material portions of that section are as follows: “All taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village, or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city, or village lies. It shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him, including the interest thereon, to purchase ” bonds mentioned, to “ be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city to aid in the construction of said railroad or railroads. In case any county treasurer shall unreasonably refuse or neglect to comply with the provisions of this act, any taxpayer in any town, village or city theretofore having issued bonds in aid of the construction of any railroad or railroads, is hereby authorized to apply to the county judge, on petition, for an order compelling said treasurer to execute the provisions of this act. And it shall be the duty of said county judge, upon a proper case being made, to issue an order directing said county, treasurer to execute the provisions of this act.5-’ Our main duty upon this appeal is to construe this section. It has several times been under consideration in the courts, and the views of judges in reference to it have not been in entire harmony.

■ All taxes, except school and road taxes, imposed upon the railroads mentioned, are required to be paid over to the county treasurer; and this obviously means all the taxes of every description, including town, village, city, county, and state taxes, except school and road taxes. The sums thus paid to the county treasurer are to constitute a sinking fund for the payment and redemption of the municipal bonds. There is nothing impractical in the scheme of this section. It is easy for the officers imposing the taxes to ascertain their amount, after deducting school and road taxes; and the amount to be paid to the county treasurer, and held by him for a sinking fund, can be specified in the warrant issued to the collector. People v. Brown, 55 N. Y., 180. But, if not so specified, it must always be easy for the collector to make the proper deduction of school and road taxes, and then, in obedience to command of the statute, to pay the balance to the county treasurer. If the duty of making the separation of the school and road taxes from the other taxes has not been discharged before payment of the taxes to the county treasurer, it will rarely, if ever, be difficult for him to make such separation; and it will be his duty to make it, and invest the proper amount as directed by the statute. The authorities of towns, villages, cities and counties have no right to divert or appropriate these taxes for other purposes. Bridges v. Supervisors of Sullivan Co., 92 N. Y., 570. They never came into the hands of the county treasurer for any other purpose than that mentioned in the section, and they are devoted by law to the benefit of the municipality in which they are collected, and must be held and invested in the mode directed for its benefit. The taxes which are to be paid into and constitute the sinking fund need not be specially levied, but they are to be levied in the same way as other taxes; and all the taxes thus levied are to be devoted to the purposes mentioned. It is quite true that a deficiency may thus be caused in funds required for town, village, city, county and state purposes, but the local authorities must in some way make provision for such deficiency, and there is ample power in the statutes to do so.

The provisions of this section are applicable to any municipality which has bonds outstanding, issued under any act in aid of the construction of any railroad within its borders. The statute speaks of taxes upon the assessed valuation of “any” railroad for which the municipality has issued or shall issue bonds to aid in the construction of such road. And it authorizes any taxpayer in any town, village or city which has issued bonds in aid of the construction “of any railroad or railroads ” to petition to the county judge for an order compelling the county treasurer to execute the provisions of the act. It is not correct, therefore to say that these provisions are to be executed only in the case of railroads constructed under the act of 1869, and the amendments thereto. The provisions are broad, comprehensive, and general, and were intended for the benefit of all municipalities bonded in aid of railroads constructed in or through them. It makes no difference, as to the duty of the county treasurer, that the taxes thus to constitute the sinking fund were not expressly collected or paid over to him for that. purpose. The statute appropriates the taxes, and makes it his duty to separate and set them apart for the sinking fund.

We do not perceive that these provision of section 4 are in conflict with any constitutional provision. They do not impose a tax on property in other towns of the county of Wayne, as claimed by the respondent, for the benefit of the town of Sodus. They simply deprive other portions of the county of the benefit to be derived from the taxation of the railroad property within the town of Sodus. As to' other portions of the county, it is practically the same as if the railroad property was exempt from taxation. It would be perfectly competent for the legislature to exempt all the railroads from taxation in the towns bonded to aid in their construction; and, in making such exemption, no constitutional provision would be violated. So, too, the legislature could devote all the taxes imposed upon such railroads to town, village or city purposes; and this is what it has. done. These provisions cannot even be charged with any great injustice. The railroad property thus to be taxed was in the main created by the municipalities bonded for their construction; and until they have been either reimbursed for their expenses which they have thus incurred, or have been able otherwise to pay their bonds, it is certainly not very unjust that they should have the benefit of the taxes imposed upon the property which they have thus created.

These provisions are not in conflict with section 8 of article 7 of the constitution, which provides that “no moneys shall ever be paid out of the treasury of this state, or any of the funds under its management, except in pursuance of an appropriation by law.; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied; and it shall not be sufficient for such law to-refer to any other law to fix such sum.” This fund was not in the treasury of the state, and never belonged to the state, or to any fund under its management. Hence that section of the constitution has no application to this case.

It is also clear that these provisions do not violate section 20 of article 3 of the constitution, which provides that “every law which imposes, continues or revives a tax shall distinctly state the tax, and the object to which it is to be applied, and it shall not be sufficient to refer to any othei», law to fix such tax or object.” The law we are considering simply specifies what may be done with a tax which has been legally imposed. The constitutional provision referred to can have no application to such a case as this. Succession Tax Case, 104 N. Y., —. We are therefore of opinion that the provisions of section 4 are not in conflict with the constitution; that their meaning is'reasonably plain; and that it is practicable to execute them. It therefore only remains for us to inquire whether there is anything peculiar to this case which justifies the county treasurer in his refusal to ■execute these provisions.

What we have already said is a sufficient answer to most of the other objections made. It appears quite clearly from the petition and answer, and the evidence upon the hearing before the county judge, that the taxes imposed upon these two roads for the year 1881, after making deductions for school and road taxes, were much more than $437.69. But the petition alleges that that was the sum over and above school and road taxes which was paid to the county treasurer as the railroad taxes of that year; and, upon the hearing before the county judge, the county treasurer admitted that the amount of all taxes collected upon the assessed valuation of the railroads in the town of Sodus for the year 1881, and paid to him, was the sum of $2,603.09, of which sum $427.69 was the portion of the railroad taxes other than school and road taxes. And it was that sum which the petitioner prayed that the county treasurer be compelled to pay, invest or set apart as a sinking fund under the fourth section. It is probably true, upon all the facts appearing in in the case, that the county treasurer ought to have set aside a larger sum in the execution of his duties under the act. But it is no defense that the petitioner has not prayed for a sufficient amount, and that possibly the county treasurer could be vexed with further proceedings requiring him to ■set aside a further amount. It is his duty to set aside and invest as a sinking fund all the taxes paid to him, and appropriated by section 4 for that purpose. But, if the county judge should make an order requiring him to set aside a less sum than he ought to, certainly he cannot complain of such an order. Upon the hearing of this case before the county judge, notwithstanding the prayer of the petition, the county treasurer could be compelled to set aside for a sinking fund all the taxes which may appear to have been paid to him, and were devoted by the statute to that purpose; •and there is ample power conferred upon the county judge to ascertain the amount, and make an order accordingly.

It is no answer for the treasurer to say that, if he should ■set aside these taxes for a sinking fund, there would be a deficiency in other funds, and that he may not have money ■enough to pay the obligations of the county to the state, ■ and to the county officials and county creditors. He has no right to use the money produced by these taxes to discharge any of these obligations. The law has appropriated it for a specific purpose, and it is his duty to apply it to that purpose. There are no subsequent statutes which in any way interfere with these provisions of section 4. The general laws of the state for the imposition and collection of taxes ■do not interfere, and were not intended to interfere, with this section. These taxes were devoted to a special purpose by section 4; and all prior laws in conflict with that section, or requiring a different disposition of taxes thus collected, are so far modified or repealed. And our attention has been called to no subsequent statute which has any bearing whatever upon the questions here involved.

We are therefore of opinion that the orders of the general term and of the county judge should be reversed, and the proceedings remitted to the county judge for a further hearing upon the petition, and that the appellant recover costs against the respondent in this court and in the supreme court.

All concur.


author: Andrews, J.

text:
    Jay Anthony, Resp’t, v. Joseph Leeret et al., App’lts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Master and Servant—Negligence of fellow servant.
    Défondants were manufacturers of wooden boxes, with the saws and cutting machines on the second floor, the lumber after it had been planed in the room below being passed to the upper room through a trap door in the floor, and piled on either side, leaving an alley-way, leading over the trap, through which the workmen had to pass. Plaintiff, who was in their employ, was injured by the sudden opening of the trap from below by a fellow workmen, although this was contrary to instructions given by defendants to the workmen in the lower story. Held, that defendants, were not liable, as the immediate cause of the injury was the negligence of a co-servant.
    2. Same.
    The location of the trap-door in the passage-way was not per se a wrongful act. The defendants had a right to arrange their own premises in any way which suited their convenience, and were not bound to change the arrangement to secure greater safety to the employees.
    Appeal from judgment of supreme court, general term, fourth department.

      I. K. Fuller, for app’lts; M. M. Waters, for resp’t.

       Reversing 35 Hun, 663, mem.

   Andrews, J.

The plaintiff, by the lamentable accident which is the subject of this action, has sustained a most severe and probably permanent injury. The question which we are to determine respects the liability of the defendants, on whose premises it happened, and between whom and the plaintiff existed at the time the relation of master and servant. The basis of the claim to charge the defendants with the consequences of the accident is negligence. The jury have found, upon this issue, in favor of the plaintiff. We are called upon to determine whether the evidence supports a recovery and justifies the judgment rendered.

The defendants were engaged in the manufacture of boxes and other articles from wood, and for the purposes of their business occupied a building of two stories, in which the various processes of dressing rough lumber, cutting it into suitable lengths and forms, and manufacturing the same into boxes and other articles, were conducted. The planing machines were on the first floor, and the men employed in this department were in charge of a foreman. The saws and cutting machines were on the second floor, over the planers, and the lumber, after it had been planed in the room below, was passed up by men employed in that room to the upper room through a trap-door in the floor of the second story, and there piled on either side the space between the trap-door and the north and south walls of the building, leaving a space or alley-way between the ends of the piles. The cutting machines were near the north wall, and the planed lumber was taken from the piles to the cutting machines, and cut into the lengths and forms required. The west side of the second story was used as the nailing room, in which workmen were employed in putting together pieces obtained from the cutting room, and making them into boxes. Each nailer procured the pieces he needed for his particular work, by passing from the nailing room through a door in the partition dividing the nailing room from the cutting room, and thence, through the passage-way made by the two piles of lumber, to the cutting machine, where they selected an armful of pieces, and took them by the same passage-way to the nailing room. The trap-door was in the passage-way. It was constructed of two thicknesses of boards, with cleats, was quite heavy, weighing as stated by one witness, fifty pounds, and swung to the north, and in this door on the top_ was a staple and ring for raising it from above. The opening in the floor was about three feet square. The trap-door was firm and solid, and it is not claimed that it was out of repair, or was in any way defective.

The plaintiff was a nailer in the box room, and had been engaged in this business in this place for twenty-two months prior to the accident. On the occasion of the injury he was returning from the cutting room, through the passage-way, to the nailing room, carrying in his arms a large load of pieces, and was in the act of stepping upon the trap-door when it was suddenly and without notice thrown open from below, and he fell with his load to the lower floor, sustaining the injuries complained of. The trap door was placed in the floor seven or eight years before the accident, it was conveniently located for the purpose designed, and was placed there to avoid the necessity of carrying the planed lumber to the second story by the stairways on the outside of the building. It was shown that, about two years prior to the accident in question, a boy fell through the opening, but fortunately he was not injured. It does not appear how the door came to be open on that occasion. This incident, however, led to instructions being given to the workmen that the door should never be opened from below. Before this, the men in the planing room would sometimes open the door by pushing against it from the underside with a board, although it was difficult to do this by reason of the height of the floor and weight of the door. But, after the boy fell through; the men employed in thé planing room were instructed not to open the door from below, but to rap on the door when they desired to have it opened, and wait till some one opened it from above, or to send a person from below to open. it. The general uniformity of the practice thus enjoined is apparent from the plaintiff’s own statement that, during the whole twenty-two months of his employment, he had never known the door to be opened from below except on the very occasion of the accident in question. On this occasion the door was thrust ■open by one Schmidt, a workman in the planing room, who, four or five days before, had entered the service of the defendants, and had been set to work in the planing department. He testifies that he had been instructed by the foreman, when he desired to have the door opened, “to shake the door, and wait until somebody came to open it; ” that on this occasion he wanted to send lumber up stairs, and rattled the door, and then stopped, and the witness continues: “ I don’t know how long, and then I pushed it up because they did not come quick enough upstairs. I did not like to wait so long. It was not an easy matter to push it open. It would take a man to throw that door open; it was ■a heavy door. I took a piece of board and put the end of it against the door, and then I gave two or three raps with the board and waited a little while, and there didn’t any one come. Then I gave a little hitch, and then another, and then over it went.”

The evidence is undisputed that the plaintiff was fully informed as to the location and use of the trap door, and the manner of its construction. He testifies that he had passed over it hundreds of times. In respect to the care taken by himself, he says: “I used to think about the trapdoor a good deal. I don’t think I thought any more about it than I had for a long time. I was always pretty careful about the trap-door, and always watched it.” As bearing upon the knowledge of the defendants of the dangerous location of the trap-door, it was shown that, when it was constructed, they were warned against placing it in the passageway, and that they knew of the incident of the boy falling through the opening at the time it happened.

Upon the facts disclosed in the evidence, of which the foregoing statement is a summary, we are unable to perceive any ground upon which the defendants can be held liable. The immediate cause of the injury was the negligence of a co-servant. If Schmidt had obeyed the instructions of the foremen the accident would not have happened. He was a person of mature years, and it is not claimed that he was deficient in capacity or intelligence, or that he did not comprehend the situation and understand the instructions given him. His own account of his conduct shows that he violated his instructions from his impatience, because there was not a prompt response by persons above to his signal for opening the door. His disregard of instructions, designed for the safety of persons using the passageway, was the fault which immediately caused the accident. The general rule, that a master is not liable to a servant for an injury occasioned by the negligence of a co-servant, is admitted by the learned counsel for the plaintiff; and, indeed, the general doctrine upon the subject is so well settled that it admits of no argument. But it is claimed that the negligence of the defendants co-operated with that of Schmidt m producing the injury. If this claim is well founded, the plaintiff is entitled to recover because for a wrong or injury occasioned by the joint or co-operative agency of two or more persons all the tort-feasors are separately and jointly liable; and there is no implied contract growing out of the contract of service that the servant shall take the risk of the master’s negligence, or that the latter shall be exempt from responsibility to the servant for his own personal wrongs. The negligence of the defendants, if any exists, must be found either (1) in the location of the trap-door in the passageway; or (2) in failing adequately to protect or guard it. It is a complete answer to the claim of negligence in these respects that the plaintiff had full knowledge of the situation and of the arrangements for the protection of persons using the passageway; and that, by continuing in the employment, he assumed the risks and hazards incident to the situation, and especially such hazards as might result from the non-observance by co-employees of directions designed for the protection of persons using the passageway. The dangers to which the plaintiff was exposed were known and obvious. It is not the case where an inexperienced or uninstructed employee may know the facts, but may be incapable of drawing the proper in-fen, nces or appreciating the dangers. The plaintiff was as fully competent to understand the risks from the location of the trap-door and its use, and from negligent conduct of persons employed in the planing-room, as were the defendants. The location of the trap-door in the passageway was not per se a wrongful act. The defendants had a right to arrange their own premises in any way which suited their convenience, and were not bound to change the arrangement to secure greater safety to the employes. If the trapdoor was not open to observation, or its existence was not known to those whose duty required them to use the passageway, or if the defendants had omitted to give proper instructions to those employed in the planing-room, a different question would be presented. The general rule that, the servant takes the risk of obvious dangers connected with his employment, has been so fully considered in recent cases that further discussion is unnecessary. Gibson v. Erie Ry. Co., 63 N. Y., 449; De Forest v. Jewett, 88 id., 264; Sweeney v. Envelope Co., 101 id., 520.

We are of opinion that the application of settled principles to the circumstances of this case requires a reversal of the judgment.

Judgment reversed and new trial granted.

All concur.


text:
    William A. Lewis, App'lt. v Charles Barton, App'lt, and Helen F Barton et al., Resp'ts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Usury—Pleading.
    In the foreclosure action the answer alleged that it was agreed that plaintiff should loan defendant $8,000, and transfer three notes amounting to $1,500, upon receiving defendant’s note for $5,000, which was done;, that the mortgage sought to be foreclosed was collateral security to such note. Also, that the transaction was usurious, and in violation of the statute. Held, suffi cient, although lacking'in precision; that the usual rules for construction of pleadings apply as well to an answer of usury as to one setting up any other defense.
    3. Same.
    That the defense of usury in the answer was not inconsistent with the admission of the averments in the complaint.
    8. Same—Estoppel.
    Plaintiff claimed that he bought the $5,000 noteas business paper, partly upon the affidavit of Barton, the mortgagor, that it was given for full consideration, and was subject to no defense of “want of consideration, usury or otherwise.” The special term believing that plaintiff had notice that it was accommodation paper, held, that the affidavit of Barton constituted no estoppel against his setting up usury; but the general term reversed the judgment, on the ground that plaintiff had no notice. Held, that as it does not appear from the order of reversal that it was made on the facts, the court must presume that it was on questions of law only, and on those it cannot stand.
    These are cross-appeals from judgment of supreme court general term, fifth department, correcting the judgment of the court below so as to reverse the judgment against Charles Barton, and granting him a new trial, and affirming the judgment against the others. The action was one of foreclosure, the defense usury, and an extension of time to pay, made to the creditor without consent of the sureties.
    A judgment entered on the decision of Mr. Justice Rumsey, at the Monroe February equity term for 1883, sustaining the defense of usury to the bond and mortgage set forth in the complaint, having at general term been reversed as to defendant Charles Barton, and a new trial ordered as to him, and affirmed as to the other defendants, the said Barton appeals to this court from as much of said order as grants a new trial as- to him,, and plaintiff appeals from so much thereof and from the judgment entered thereon as affirms said judgment as to the other defendants.

      J E. Roe, for pl’ff, George Yoeman, for def'ts

       Reversing 85 Hun, 666, mem.

   Andrews, J.

We think the answer sets out with sufficient distinctness and accuracy the transaction constituting the alleged usury as proved on the part of the defendants, and that there was no essential variance. It alleges, in substance, that Briggs & Co., the makers of the note to which the mortgage in question was collateral, applied to the plaintiff for a loan of $5,000 for nine months, and that it was thereupon agreed between them that the plaintiff would loan to Briggs & Co. $3,000 for the time stated, and transfer to them three notes he then held against third parties, amounting in the aggregate to $1,500, upon receiving the note of Briggs & Co. for $5,000, payable in nine months, with interest, and that the transaction was consummated as proposed between the plaintiff and Briggs & Co., and the note of $5,000 given, indorsed by the defendant Barton and by John T. Briggs for the accommodation of the makers, and that the mortgage sought to be foreclosed was a further security to the plaintiff for the loan. The answer also alleges that the transaction was usurious and in violation of the statute. There is some lack of precision and certainty in the averments in the answer, but the plaintiff could not have been misled in respect to the defense intended or as to the circumstances relied upon to support it. The usual rule for the construction of pleadings applied as well to an answer of usury as to one setting up any other defense. National Bank of Auburn v. Lewis, 75 N. Y., 516.

The claim that there was no sufficient denial in the answer of the averments in the complaint, if well founded, furnishes no ground of error. The defense of usury was not inconsistent with the admission of the averments in the complaint; and, as the case turned wholly upon that defense, it is unimportant that the defendants may have admitted what but for the existence of the usury would have constituted a cause of action. On the merits the evidence was conflicting. The plaintiff was sworn as a witness in his own behalf. He admitted that he advanced only $3,000 in money, and $1,500 in notes, for the note of $5,000 and the mortgage. It was not disputed on the trial that the note of $5,000 had its inception on its transfer to the plaintiff, nor that the defendant Barton was an accommodation indorser for the makers; but the plaintiff testified, in substance, that he bought the $5,000 note as business paper at the time, that it was such, and that he took it in reliance upon the credit of the parties to the paper and the mortgage of Barton, and also upon the certificate of the makers and indorsers of the note, and the affidavit of Barton, the mortgagor, executed contemporaneously with the note, that it was business paper, and was given for a full consideration, and was subject to no defense of want of consideration, usury, or otherwise.” On the other hand, evidence was given on the part of the defendants tending to show that the plaintiff, when he took the note and mortgage, had notice that the note was accommodation paper.

Upon this ground the learned judge at special term held that the certificate and affidavit of Barton constituted no estoppel against his setting up the defense of usury against the mortgage. This was manifestly right upon the basis of the facts which the evidence of the defendants tended to establish. But the general term, as appears from their opinion, reversed the judgment of the special term in favor of the defendant Barton, on the ground that the preponderance of evidence was in favor of the contention of the plaintiff that he took the note supposing it to be business paper, and without notice that Barton was an accommodation indorser, and that, therefore, Barton was estopped by his certificate and affidavit from defeating the mortgage on the ground of usury. But, in the posture of the case on the appeal to this court, we cannot regard the reversal below as having been made on the facts, because this does not appear from the order of reversal, and we are bound to presume that the reversal was on questions of law only. On looking at the exceptions we find none upon which the order of reversal can stand.

The question of pleading has already been considered. Exceptions were taken to findings of,the trial judge that the transaction in its origin was a loan from the plaintiff to Briggs & Co. upon security of the note and mortgage, and that the plaintiff, when he took the note and received the certificate and affidavit of Barton, knew his relation to the note, and did not rely upon the truth of the representations contained therein; and various exceptions were taken to the admission and rejection of evidence. There was evidence, we think, to support the findings excepted to, and we can find no exception to the admission or rejection of evidence which presents any material error. Dealing with the case, therefore, as we must, as one involving questions of law only, our conclusion is that the order of the general term should be reversed, and the judgment of the special term affirmed.

All concur.


author: Finch, J.

text:
    Henry M. Case, Resp’t, v. Isaac R. Pharis, App’lt.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Pleading—Bill op particulars—Admission op credits in.
    Plaintiff sued defendant, his son-in-law, for board furnished. The latter answered by a general denial and counter-claimed for board furnished plaintiff, which plaintiff denied. Each party furnished a bill of particulars. That of plaintiff, charging defendant for board, allowed a credit to him for similar services of a less amount. Efld, that the credit was not conclusive admission of legal liability to that amount, but that it was only a conditional or contingent admission framed to operate in a possible emergency.

      2. Same—Amendment oe bill oe particulars.
    A. plaintiff is not bound to furnish a statement of payments or off-sets which he has voluntarily credited; where he has done so in such manner as by mistake to have periled his right, or made ambiguous his meaning, an amendment allowed would not be an unwarranted discretion, but where no reference is made to it on the trial it is too late to raise the point here for the first time.
    Appeal from supreme court general term, fourth department, affirming judgment entered upon report of referee that neither party was entitled to allowance for board or services on account of their near relations, there being no agreement to that effect, but that plaintiff was entitled to judgment for $468.75 on other transactions.

      Louis Marshall, for app’lt: Thomas Hogan, for resp’t.

       Affirming 35 Hun, 666, mem.

   Finch, J.

The pleadings in this case were very general in their form. The complaint alleged, among other things, that the defendant was indebted to the plaintiff for board furnished, to which the former answered by a denial putting the claim at issue. The defendant further answered by setting up a counter-claim for board furnished by him to the plaintiff, to which the latter replied with a denial. On this state of pleadings, if nothing else had occurred, either party would have been at liberty, as against the other, to have resisted his adversary’s claim for board, upon the ground that the relations between the parties, as father-in-law and son-in-law, and the attendant circumstances, were such as to negative any implied contract to pay for board, and require for success proof of an express agreement to pay; and, if that defense failed, then to establish the amount and value of the board furnished. The two positions were not necessarily inconsistent. ~t might turn out, in favor of either party, that, while there was no implied contract, there was yet an express agreement to pay on one side and not on the other, and so respectively, each party could insist upon his own claim while denying his adversary’s, and neither conceded an implied contract by asserting his own right of action. But at some time each party furnished to the other a bill of particulars, and upon that served by the plaintiff the question arises argued on this appeal It contained a charge against the defendant for board, and a credit allowed him for similar service of a less amount; and that credit, it is claimed, admits that for board to some amount the defendant' was entitled to be paid, and so the referee erred in refusing wholly an allowance for that item, and on both sides, upon the ground that, in the absence of an express agreement, the circumstances repelled an implied one. We are now reminded that a bill of particulars is to be deemed an amplification of the pleadings, and that similar admissions have been held to be sufficient basis for a judgment. It may be that the credit here given was an admission of the fact that board to the amount stated was furnished by the defendant to the plaintiff, but we do not think, having reference to the form of the pleadings, and the issues raised by them, that the credit is a conclusive admission of legal liability to that amount. It is impossible to harmonize such a liability with the denials of the answer and reply, and therefore I think the bill of particulars must be construed to contain only a conditional or contingent admission framed to operate iñ a possible emergency.

As no item could be proved on the trial, ordinarily, unless embraced in the bill, it became necessary to name in that every charge which, upon any theory at that trial, might become admissible; and so the plaintiff, while resisting the defendant’s claim upon a ground equally fatal to his own, might guard against the possible failure of that resistance by pleading and itemizing his own charge for board as in excess of the defendant’s, and the credit given is in connection with the charge made, and upon the theory that both charge and credit may by possibility prove to be a legal liability. The admission fairly requires to be treated as a concession of the fact that board had been furnished, but does not waive the right claimed by the denial on each side of contesting a resultant liability flowing from the fact admitted. It is as if the plaintiff had said. “Board was furnished so much by me, and so much by my adversary; but I deny that either, for a reason which affects both, is a legal charge; yet if mine is allowed, it amounts to so much, and I will prove it at that, while my adversary’s is the less sum, which in that event I admit.”

If this was hypothetical pleading, or the theories were in one view inconsistent, it is further to be observed that no objection was made upon the trial in any manner raising the question. The trial went, from its beginning to its end, upon an assumption that the question of legal liability for board was an open one on each side; and, if defendant held the contrary, he should have objected to the evidence offered to defeat his claim, and relied upon the alleged admission. The attention of the referee would then have been called to it, and he would have ruled upon it, and possibly the plaintiff might then have sought leave to amend, and obtained permission to strike out the credit as made under a mistake as to its effect and construction. A bill of particulars, like a pleading, may be amended. Melvin v. Wood, *48 N. Y., 533. And when the the amendment sought is to strike vut what is unessential to the bill, and a needless addition, leaving the plaintiff’s side of the account unchaged, it would seem quite possible to permit it. It is not the office of a bill of particulars to furnish a defendant with facts whereon to found an affirmative defense in his behalf. Drake v. Thayer, 5 Robt. (N. Y.), 694. A plaintiff is not bound to furnish a statement of payments or offsets which he has voluntarily credited. Ryckman v. Haight, 15 Johns., 222; Williams v. Shaw, 4 Abb. Pr., 209. Where he has done so in such manner as by mistake to have periled his right, or made ambiguous his meaning, an amendment allowed would not be an unwarranted discretion. But in •this case the defendant went to judgment without once relying upon the alleged admission, or drawing attention to' it, or claiming anything under it. He sees the evidence which defeats it offered and given in silence; and not until the decision is made, when opportunity for amendment is gone, does he raise the point. We think that is too late, and furnishes no just ground for a reversal of the conclusion reached.

The judgment should be affirmed, with costs.

All concur, except Huger, 0. J., not voting.