¶1The point made by the defendants, that, “the alleged defect in the construction and condition of the dump being patent and discoverable upon supervisual inspection, the plaintiff’s assignor had the same means of knowledge in regard to it as the defendants; and if it was negligence on the part of the defendants to provide such an appliance for use of the plaintiff’s assignor in unloading the horse and cart, it was also negligence on the part *649of plaintiff’s assignor to drive the horse and cart on such dump, ”—is good law, and decisive of this appeal. Marsh v. Chickering, 101 N. Y. 396, 5 N. E. Rep. 56; Cahill v. Hilton, 106 N. Y. 512, 13 N. E. Rep. 339; Splittorf v. State, 108 N. Y. 205, 15 N. E. Rep. 322; McQuigan v. Railroad Co., 122 N. Y. 618, 26 N. E. Rep. 13; McGrath v. Walsh, (Com. Pl. N. Y.) 4 N. Y. Supp. 705. But in addition it may be added that there was no adequate proof that the device for dumping here used was not proper for the purpose it was intended to serve. Again, it is doubtful if the nature or condition of this platform either caused or contributed to the accident, but rather that the accident was proximately caused by fright of the horse or unskillfulness of other drivers using the dump at the same time. A nonsuit was properly granted, and the judgment must be affirmed, with costs. All concur.
17 N.Y.S. 648
Boylan v. Brown
Decided February 8, 1892
New York Supreme Court · decided 1892-02-08
Action by Patrick S. Boylan, assignee of Thomas Shevlin, against Charles A. Brown and another to recover damages for the loss of a horse and cart caused by a fall from defendants’ dumping dock, which was insufficiently provided with means to prevent dumping carts from going over; the string-piece intended for that purpose having been worn down so low as to be no longer safe. From a judgment for defendants, plaintiff appeals.
Relies on Marsh v. . Chickering · Cahill v. . Hilton · Splittorf v. . State of New York
Affirmed · Decided 1892-02-08