Carroll v. Mayor of New York

Barrett, J. (dissenting):

I think that this case was for the jury. It is said that the city did not invite Wjmn to use the derrick, and, hence, was under no duty to him or his employees to see that it was safe. I think the jury might property, upon the evidence, have found the contrary. The derrick was erected upon city land by city empWees. It was in a spot where it could be conveniently used to unload stone, and was so used continually with the knowledge of the city authorities. Dubois, the foreman of the Twenty-fourth street J'ard, testified as *427follows : “ It was used by stevedores in discharging broken stone to the bin that was on the bulkhead. * * * I saw this was used by these people for removing stone.” Hot only was this use not prevented by the city authorities, but it evidently had their full sanction. In fact, it is difficult to see what other purpose they could have had in erecting the derrick. Whether they had special knowledge of Wynn’s intention to use it, or. his use of it, is quite immaterial.

Stress is laid upon the fact that the derrick was not rigged, and that Wynn supplied his own tackle. But this by no means negatives the evident intention that the derrick should be used. The city might well be willing to furnish the structure of the derrick, and invite its use, on condition that the stevedores should supply their own tackle. To liken this unrigged derrick to loose timber lying upon the bulkhead seems somewhat grotesque.

The city having thought fit to erect this derrick and to invite its use by those transacting business with it, is certainly under a duty to keep it safe and fit for that use. Coughtry v. Globe Woolen Company (56 N. Y. 124) is a direct authority, which does not differ in any material respect from the present. It is true that there the defendant made an agreement with Osborn & Martin, the plaintiff’s employers, to erect the scaffolding upon which he was injured. But the decision was not in the least based upon this fact. Rapallo, J., said : “By placing it (the scaffold) where they did, on their own premises, for the use of the workmen, they (the defendant) not only licensed but invited them to go upon it, and impliedly held out to them that it was a safe structure, or at least that proper care had been used in its erection. These facts did, we think, impose a duty upon the defendant toward any person who should be invited or licensed by it to go upon the structure, to use proper diligence in its construction and maintenance, and that this duty existed independently of anything contained in the contract with Osborn S Martin. * * * If the contract had been silent as to stagings * * * the case would not be materially varied.” This case has never been questioned, but has often been cited with approval.

. It shows plainly that liability in such cases is not based on privity of contract, but upon the common-law duty to use reasonable care *428to prevent injury to another from an instrument which he is invited to use.

The question as to the plaintiff’s contributory negligence was plainly for the jury. I must emphatically dissent from the statement that it is apparent from the evidence that the defect complained of might very easily have been observed by the slightest inspection. Nothing but a thorough examination would have disclosed the defect of the pin.

I may add that the case cannot be disposed of upon the authority of King v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 182), since the city did not surrender the derrick under a contract with a third party, but remained throughout in full control of it.

I think the judgment should be reversed, and a new trial oixlered.

Judgment affirmed, with costs.