APPEAL from a judgment of the Supreme Court in favor of plaintiff and against defendants-appellants, entered May 18, 1954, in New York County, upon a verdict rendered at a Trial Term (LEVEY, J.).
James I. Cuff of counsel (Lillian E. Cuff with him on the brief; George A. Garvey, attorney), for appellants.
Benjamin H. Siff of counsel (Hill, Rivkins & Middleton, attorneys), for respondent.
In this negligence action to recover damages for personal injuries the appealing defendants attack the judgment entered against them upon the grounds that (1) it is unsupported by the evidence and (2) it resulted from errors committed by the trial court in its charge and rulings on certain requests to charge.
Plaintiff was injured when a two-story concrete bulkhead building connecting Pier 57 with Pier 58--the latter 250 feet to the north--collapsed. The two piers and the building were
operated and controlled by defendant Grace Line. All three structures extended out over the North River and rested on wooden piles. The ground floor of the building was level with the piers and was used as a passageway for moving cargo from one pier to the other. It also afforded a place where marine gear and equipment could be kept when not in use. The floors of the piers and the building were of the same material, presenting a continuous and uniform paved surface. Access to the building from Pier 58 was through a 20-foot opening leading into the 250-foot causeway to Pier 57.
On September 28, 1947, a fire occurred on Pier 57 which practically destroyed the pier. Pier 58 was not involved in the fire. The following morning plaintiff, a cargo surveyor and appraiser, was retained by Grace Line and its subsidiary, defendant Huron Stevedoring Corporation, to make a survey and appraisal of any damage that might have been caused to baggage, cargo and stevedoring equipment. Plaintiff went to Pier 58 for the purpose of examining baggage that had been transferred to that pier from Pier 57. He found Pier 58 to be 'permeated' with smoke emanating from Pier 57, but saw no evidence of any flames or active fire at Pier 57 or, for that matter, at any other place.
The next day, again at the request of Grace Line, plaintiff went to Pier 58 for the purpose of ascertaining whether conditions permitted the placing of a shipment of coffee on the pier without danger of its becoming contaminated by smoke. He found the pier to be practically free of smoke and that there was no danger of smoke contamination. On this occasion he looked into the bulkhead building and noticed several large holes in the floor of the causeway leading to Pier 57. The piles supporting the floor at these points had burned down to such an extent that the concrete surface had fallen and created the holes. Plaintiff knew that the burnt pilings were responsible for the openings in the floor. There was evidence indicating that at least one of the openings had been made with the use of a chisel.
Later that day plaintiff conferred with officials of defendants Grace Line and Huron Stevedoring, as well as a Mr. Helprin, the surveyor representing the insurance companies which had insured the stevedoring equipment. Arrangements were made for plaintiff and Mr. Helprin to meet at Pier 58 the following morning. Among other things, plaintiff was to make a list of the stevedoring equipment that was on the pier or in the bulkhead building. Pursuant to these arrangements, plaintiff
met Mr. Helprin at Pier 58 on the following morning. As had been the case on his prior two visits, plaintiff experienced no difficulty in entering the pier, which was functioning in the usual manner. Cargo was being discharged from a ship and transported about the pier by tow motors and other vehicles. In general the activities were those normally to be expected on and about a pier.
During the performance of his work for appellants, plaintiff, followed by Mr. Helprin, entered the bulkhead building from the entrance on Pier 58. There were no signs or barricades to indicate that the bulkhead building was unsafe in any way. He proceeded toward an irregular hole in the floor of the bulkhead building which was approximately eight feet in width and ten feet in length. The easterly edge of the opening was 'close against' the concrete wall on the street side of the building. The floor between the westerly edge of the opening and the wall on the river side of the building was intact. When plaintiff reached a point about ten feet from the opening he saw two tow motors resting on the burned and charred remains of the wooden pilings which had supported that portion of the floor. He was making a notation of his ...