Young v. Herrmann , 104 N.Y.S. 72 ( 1907 )

Gaynor, J.

(dissenting):

The defendants’two loaded wagons were-going'uptown along '3rd avenue in Manhattan,.- There had been a snow storm, and the ,-snow w;as deep. Loaded wagons were, drawn through the streets with difficulty, except when in the car tracks, from which the snow had been thrown to either side. When the defendants’wagons had-to turn out at intervals for the cars they got into the deep snow. In. such -case a rope had to be sometimes, extended-from the rear of the front wagon to the shafts of the second so as to assist the latter (which had only one horse) for a short distance out of the snow to the railroad track, or to a cleared part of the street, when it was taken off. This had been done at intervals all the way up town. The wagons got in that case between-22nd and 23rd streets, and the tow rope was put on. As they were crossing 23rd street on a slow walk the plaintiff was crossing 3rd avenue and walked up against the taut rope and was thrown. There is evidence to show he was hurrying and regardless; he says he was walking faster than he usually did. He sayS he could have seen the rope if he had looked, but that he."did not expect it. It was 6:45 in the evening of January 16th. The street was lighted, and on a review of the facts, at least, we have the right to call upon our own experience, from which we know that such a rope would be seen by any one who was looking where he was going, which is the duty of due care of every one. crossing streets', and the- -more crowded the street the more vigilance is. required. The driver of the. rear wagon was in his seat driving and looking ahead. There is evidence that he called out in warning "to the plaintiff, who only says he did not hear it. The witnesses on the plaintiff’s side say the rope was about twelve feet long—'or that that was the distance from the rear horse to the front wagon ; those on the defendants’ say about fivebut this difference is not material — ten to fifteen feet is a short distance, and, probably, about the safe one for the rear horse.

The defendants did nothing that they had not the right to do. For one team to assist another by a tow is a familiar if not an every day occurrence in our streets, especially in times of snow and slush, which are frequent in this climate. The act was not one of negligence. To allow a recovery on the facts of this case would extend the law of negligence to a vague point. Those engaged in honest industry are already oppressed with far-fetched actions for negligence.

The charge of the learned trial judge does not point out any act or omission on which the jury might base a finding of negligence, as it is necessary always for a charge to do; and we therefore do not now know on what the jury may have based their verdict of negligence. ■ A jury cannot be left free to make a finding on anything they see fit. In this case counsel had made many suggestions' of negligence — that the rope was muddy, that it was dark colored from use, and therefore not so visible or observable as a new and yellow rope, that a larger rope would, have been seen, that the rope should have been doubled for the same reason, that tags .or flags or lanterns should have heen hung from it,' that a boy should have walked alongside of it, and the like. Ho one knows on what act or omission the jury may have based their finding of negligence. They may have based it on some of those suggested to them by counsel, or on. something no one except themselves thought of.

The judgment and order should be reversed.

Judgment and order affirmed, with costs.