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Kalbach v. Ross

Supreme Court of New York, Appellate Division

May 3, 1911

GOTTFRIED KALBACH, as Administrator, etc., of CARL WALTER KALBACH, Deceased, Plaintiff,
CLINTON M. ROSS, Defendant.

MOTION by the plaintiff, Gottfried Kalbach, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, a nonsuit having been granted at the close of the plaintiff's evidence on a trial at the Erie Trial Term.

This is a common-law action and was commenced on the 1st day of October, 1909, to recover damages sustained by the heirs and next of kin of the plaintiff's intestate because of his death

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alleged to have been caused solely through the negligence of the defendant.


Carlton E. Ladd, for the motion.

Charles A. Dolson and William B. Lynde, opposed.


The material facts are not in dispute and a nonsuit having been granted plaintiff is entitled to the most favorable inferences deducible therefrom.

The accident which is the subject of this litigation occurred at about noon on the 26th day of July, 1909. At the time plaintiff's intestate was employed by defendant as a teamster and in the regular course of his employment drove a pair of horses drawing a heavy wagon to the freight house of the Lehigh Valley Railroad Company in the city of Buffalo to obtain for his employer a crusherhead, so called, being a casting, funnel shaped and weighing upwards of 3,800 pounds. The employees of the Lehigh Valley Railroad Company, upon the arrival of the decedent, defendant's employee, loaded the casting into the wagon and placed the smaller end of the casting toward the front end of the wagon and the heavier end toward the rear, about two or three inches in front of the hind bolster and axle, and such employees of the Lehigh Valley Railroad Company placed some pieces of boards against the crusherhead to keep it in position. After the crusherhead had been so located, plaintiff's intestate started with it to take it to defendant's factory or plant over various streets in the city, which were more or less uneven. In thus proceeding with the load plaintiff's intestate discovered that the casting was slipping backward and he, with a young boy whom he had asked to ride with him, assumed to remedy the difficulty by blocking the casting with a piece of stone or otherwise. At a certain point in the journey, when plaintiff's intestate had asked the young man riding with him to get some additional blocking for the casting, plaintiff's intestate stepping back to remedy the difficulty, the casting having shpped back over the hind bolster or axle the equilibrium was lost and the box was turned over with the decedent in it and he was killed.

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The charge of negligence is that the defendant should have provided a wagon, the box or superstructure of which was so fastened to the head-end bolster or wheel that it could not have turned unless it turned the running gear at the front end of the wagon.

Really only two questions are presented by this appeal. First, was plaintiff's intestate guilty as a matter of law of contributory negligence, and, secondly, in any event was the defendant guilty of actionable negligence in sending plaintiff's intestate to draw this casting from the station of the Lehigh Valley Railroad Company in the wagon and in the manner in which he did?

As appears by the evidence of the decedent's father he, the decedent, was a man of experience. He was sixteen years and three months of age at the time of the accident. He had lived with his father all his life, attended school until he was fourteen years of age and then started out to work. First he worked in a drug store washing dishes and selling ice cream. He afterwards worked for a chicken dealer about a year and a half, killing chickens and delivering them. Next he worked with a tree gang, so called, in the city of Buffalo. He took limbs away and squirted stuff on the trees. Then he worked for the defendant, driving his teams about the city as required in defendant's business. The father says that he was a pretty smart boy, weighed about 130 pounds and that he was a well and tough boy. Another witness called by the plaintiff, and who speaks of the deceased's experience, says, in substance, that the deceased had worked twice for the defendant; that the first time he came was about in October, 1908; that he worked then about seven weeks; that Mr. Ross (the defendant) is in the business of furnishing contractors' tools and supplies for quarries, and was engaged in taking all sorts of material from his plant, which was an extensive one, to the various railroad freight offices and receiving from them material and other supplies necessary to and required in his business.

It would seem clear from the evidence that the decedent was sui juris, and that he was qualified to understand and appreciate the situation in which he was placed and the possibility of ...

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