Ludwig Anderson, an Infant, by Andrew Anderson, his Guardian ad Litem, Appellant, v. Henry Rothschild, Respondent

Ludwig Anderson, an Infant, by Andrew Anderson, his Guardian ad Litem, Appellant, v. Henry Rothschild, Respondent. Negligence—injury from, the chute, attached tó a coal cart, running out from, under it and striking a hoy. In an action to recover damages for personal injuries it appeared that one of the defendant’s servants was delivering a load of coal at the house of the plaintiff’s father; that the wagon was provided with a chute which pulled out from under the wagon and was used for the purpose of carrying coal over the sidewalk to the coal hole; that the driver, finding that the chute was too short, shoved it back under the wagon and then raised the front of the wagon by some machinery with which it was provided to enable the coal to flow freely therefrom. The coal was then taken out in bags and carried into the cellar. After this had .been done, the plaintiff, a boy six years of age, commenced to sweep the coal dust off the sidewalk, although he was told by the driver to get out of the way. While the boy was sweeping, the driver proceeded to let down the wagon and the chute shot out, striking the boy upon the leg and breaking it. The evidence tended to show that the cause of the accident was the breaking of a hook, used to keep the chute from coming out from underneath the wagon; that this hook was sufficient for the purpose for which it was provided, and that the break in it was a fresh one extending all the way across. Held, that the court erred in dismissing the complaint; That the jury might have found, from the fact that the hook was broken and that the break was entirely fresh, that it had been negligently submitted to some extraordinary strain while the wagon was being negligently lowered. Appeal by the plaintiff, Ludwig Anderson, an infant, by Andrew Anderson, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of June, 1901, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the New York Trial Term. J. P. Berg, for the appellant. John Vernou Bouvier, Jr., for the respondent. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: This action was brought to recover for injuries claimed to have been sustained by the infant plaintiff on the 5th day of January, 1901, by being struck by the chute of a coal cart belonging to the defendant while coal was being delivered at the house of the plaintiff’s father, resulting in a fracture of the leg. It appears from the evidence in the case that on said day a horse and wagon loaded with coal belonging to the defendant and in charge of one Edward Adams, a servant of the defendant, was backed up to the curbstone, in front of the residence of the plaintiff’s father for the purpose of delivering coal. The wagon in question was provided with a chute which pulled out, and which was used for the purpose of carrying coal over the sidewalk to the coal hole leading to the cellar. The chute connected with the wagon in question, upon being tried, was found to be too short. It was then shoved back under the wagon and the front of the wagon was raised up by some machinery with which it was provided to enable the coal to flow freely from the wagon. The coal was then taken out in bags and carried into the cellar. After this had been- done, the plaintiff, a boy of six years of age, procured a. broom and commenced to sweep the coal dust off the sidewalk. While so doing he was told by the driver to get out of the way, but he still kept on with his work and the driver proceeded to let down the wagon, the chute shot out, struck the boy upon the leg and broke it. The driver stopped the fall of the front of the wagon as soon as the chute shot out, and then finished the letting down of the wagon after the child had been taken care of. i There was evidence tending to show that the wagon was old and out of repair, and there was other evidence tending to show that the wagon was in good repair, was substantially new, and had been examined upon the morning in question. It further appeared from the evidence that the accident was caused by the breaking of a hook which was used to keep the chute from coming out from underneath the wagon. The evidence was that this hook was of the ordinary kind, and that the break in it was a fresh one all the way across. Upon this state of the evidence the court below dismissed the complaint. This, we think, was error, because from the fact that this hook was broken as the result of letting down the wagon, which the evidence shows was being let down very fast, the jury might find that the wagon was negligently handled, and that an undue strain was put upon the hook when the wagon was let down by the driver. The evidence shows that this appliance was an ordinary one used for the purpose of holding the chute, and that it was sufficient for this purpose; and the fact that it was broken, the break being entirely fresh, indicated that some extraordinary strain had been put upon it, which the jury might find was the result of improper handling of the wagon to which it was attached. We think, therefore, that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Patterson, O’Brien and Lattghlin, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.