The Bush Terminal Company has a large warehouse plant covering blocks of territory on the shore front of Brooklyn, fronting the lower bay of New York. It has one hundred and twenty-one warehouses, eighteen piers, sixteen factory and loft buildings. The loft buildings have six million square feet of loft space, and their warehouses two and a half million. The Bush Terminal Company is primarily in the warehouse business, and the maintenance of the railroads running along the streets and onto the piers and into the loft buildings is all incidental to the warehouse business (fol. 284). The piers run out into the bay thirteen hundred feet — a quarter of a mile, and one hundred and fifty feet wide (fol. 243).
The pier in question when this accident happened, had a railroad running down its entire length connecting with the warehouses and also a passageway for trucks running down the northerly side of it. The sheds on the outer end *Page 329 of the pier in the sections known as C and D do not cover the entire pier crosswise as there is some distance between the outer wall of the shed and the edge or stringpiece of the pier. The door or doorway of the shed is back from the edge of the pier or stringpiece over two feet two inches from the stringpiece (fol. 67).
Mr. Blackiston, vice-president of Bush Terminal Company, testified regarding the runway: "You might call it a runway or an apron, not enclosed, and runs about 650 feet from the bulkhead line directly out toward the pierhead line of the pier, and that is a runway there which trucks can use to get to the outer end of the pier; otherwise the outer end tenant would have no way of getting ashore with his merchandise. * * * That runway goes through a door into sections C and D, the outer end of the pier.
"Q. And that runway is maintained by your company? A. We maintain that together with the whole pier, so far as general maintenance is concerned.
"Q. And do you use it for the movement of freight for yourselves? A. A shipper turns over business to us and we go out on the pier and get it and load it and bring it in, the same as any other truckman would bring his goods from the pier to the warehouse."
The Bush Terminal Company had leased the end of the pier compartments, known as C and D, to one Wilhelm Wilhelmsen; but that the lessor had retained control over a large part of the pier, including the railroad track, the runway and all the rest of the outer portions of the pier and buildings — in fact all of the pier — for the purpose of maintenance and repair, is beyond question to my mind, by reason of the testimony of its own employees and officers as hereafter quoted. The question in this case submitted to the jury was whether the Bush Terminal Company had retained possession and control over the pier for the purpose of making repairs, and whether *Page 330 this is a duty which it had assumed and a control which it had retained.
The accident happened in this fashion. A ship was alongside the pier into which stevedores were loading drums of gasoline. They were hoisted by means of a derrick on board the ship. A skid or inclined plane ran from the dock up the side of the ship and the drums were hauled up the skid. The purpose of the skid was to prevent drums striking the ship. The plaintiff stood on the dockoutside the shed beyond the doorway of the ship guiding the drums up the skid. A man stood on the rail of the ship giving directions to the winchmen when to lower and raise. Over the doorway of the shed was a heavy piece of timber used as a raindrip. It was sixteen feet long, about twenty inches wide and about eight inches thick. It had been loose for some time, for months. The nails were rotten and it had broken away an inch or two from the shed. This fell on the plaintiff's head and injured him. It was like the falling of the cornice off the outside of a building and striking a person on the street, or the falling of a ceiling in the hallway of an apartment house upon a truckman carrying goods out of an apartment. The plaintiff was not the employee of the lessee or the lessor; he was a stevedore standing on a dock outside of the leased sheds, struck by a cornice or a raindrip falling off the shed.
Whose duty was it to make these repairs? We are told by the employees and officers of the Bush Terminal Company, and surely they should know. Ward L. Sturges was the general superintendent of the Bush Terminal Company. The following questions and answers were brought out by the attorney for the defendant. Sturges had been called by the plaintiff and was under cross-examination by the attorney for the Bush Terminal Company, and gave the following answers (fol. 280):
"Q. Mr. Sturges, who makes repairs to damage portions *Page 331 of sections C and D, pier 5, and who made repairs immediately preceding March 20, 1927? A. Why, the Bush Terminal Company.
"Q. And that was under your direction and control at that time? A. Yes.
"Q. If you noticed something out of repair would you proceed to repair it or wait? A. We certainly would, yes.
"Q. You would proceed to repair it? A. Yes. I occasionally walk around the plant. I have no special time.
"Q. And of course, if you saw anything out of repair — A. We would fix it."
Gustav A. Anderson, the superintendent of construction and maintenance of the Bush Terminal, testified that he regularly inspected these two sections, C and D, of Pier 5 for the purpose of determining whether there was any disrepair (fol. 380); and at folio 383 gave these answers:
"Q. When you think anything is to be done you go out there and do it, don't you? A. Yes.
"Q. And how many men have you under you who make repairs to that pier? A. About fourteen men, carpenters and dock builders, and so on.
"Q. Can you go about on that pier, at the end of it, in sections known as C and D, whenever you want to and whenever your men want to? A. Oh, I guess we can, yes.
"Q. And you have done it all the time? A. Yes.
"Q. What kind of repairs do you make? A. Well, in case anything would be loose or falling, or anything like that, and we see it, we are told to do such repair.
"By the Court:
"Q. Do you wish this jury to understand that where you saw, as you testified, things loose or falling that you made repairs without instructions? A. Yes.
"Q. Without any instructions? A. Without any instructions. We repair them things. If we see anything loose or falling we are ready to repair that at our *Page 332 own risk, as we see it. When we are going through the premises there we always look if there is anything necessary to be repaired. If we see anything like that that is off, we will repair it without any question."
As to this particular raindrip which fell the witness testified: "We have went over there and nailed them, because we have been nailing them over and always look after them. We have inspection and always try and look after them" (fol. 401).
Here is ample evidence to show the custom and the practice pursued by the Bush Terminal Company in leasing out the various sections or compartments on its vast acreage of piers at its enormous warehouse plant. It kept and retained general supervision over the entire plant and all the piers. It employed a staff of mechanics under a general superintendent of construction to inspect all the piers and sheds and make repairs. It did make repairs on the very raindrips in question. It retained control of the piers for its railways and driveways. It not only assumed the duty of making repairs and retained control for this purpose, but its own officers and employees testified that they actually made these repairs without consultation, without the consent of the tenant lessee. The trial justice properly left it to the jury to say whether the falling of this raindrip upon the plaintiff was due to the negligence and carelessness of the defendant's employees, and whether or not it had and assumed the duty of making the repairs by reason of the control which it had retained. How can we say that there was no evidence to show that the duty of repair was upon the defendant, when defendant's officers and employees admit that it was, and that they undertook to make repairs upon this very raindrip?
I think the judgment for the plaintiff should be affirmed.
POUND, Ch. J., LEHMAN, KELLOGG and CROUCH, JJ., concur with O'BRIEN, J.; CRANE, J., dissents in opinion; HUBBS, J., not voting.
Judgments reversed, etc. *Page 333