McKenna v. East River Ferry Co. , 8 N.Y. St. Rep. 802 ( 1887 )

Dykman, J.

The intestate of the plaintiff sustained an injury to his foot while he was boarding one of the ferry boats of the defendant, which resulted in his death, and this-action is brought for the recovery of the damages sustained therefrom.

The trial of the cause was terminated by a dismissal of the complaint, and the plaintiff has appealed from the judgment.

A perusal of the testimony on behalf the plaintiff discloses an evident failure to exhibit the negligence of the defendant. as the sole cause of the injury which brought death to the deceased man.

There was a storm of rain mingled with snow at the time of the disaster, and the deceased stepped aboard of the boat as the bridge man was drawing the same up to the bridge, and while there was yet a space between the boat and the bridge, and as he stepped he slipped and his foot went down into that space and was caught and crushed.

That fatal step of the deceased, taken while the bridge man was in the performance of a duty in his presence, which would ensure his safety, was incautious and careless.

The unsteadiness of the vessel, the slippery condition of the deck, the precarious foothold he was certain to obtain, and the visible space over which he was compelled to step, were sufficient admonition to the deceased of the danger he would encounter by omitting to wait until the boat was made fast and steady.

Our conclusion is that the complaint was properly dismissed, and that the judgment should be affirmed.

Barnard, P. J., and Pratt, J., concur.