Opinion
November, 1897.
Joseph I. Green, for respondent.
Alfred A. Gardner, for appellant.
The plaintiff, a child four years of age, attended by her father and mother, was a passenger upon a ferry boat operated by the defendant, and, upon the arrival of the boat at its dock, she was led towards the pier by her parents, they being on either side of her and each holding one of her hands.
The gates of the boat were open and many of the passengers had already disembarked when plaintiff, so attended, reached the point where the deck of the boat joined the float or pier of the dock, but, while stepping over this point, the plaintiff was injured through her foot being caught between the float and the end of the boat, which had moved sufficiently to leave a small space open in her path.
Evidence of these facts, as given by the plaintiff's parents, was fully corroborated by a disinterested witness, and the defendant confined itself to an attempt of showing that the child's foot had been caught between the boat, when fast to the dock, and the end of a beam upon the float which bounded the path used by passengers, running parallel to it.
That the injury was so occasioned was a manifest impossibility if the evidence for the plaintiff was true, since one of her parents walked between her and this beam, as they proceeded along the path, and the justice was amply authorized to give this evidence the fullest credit.
From the facts the conclusion is irresistible that the accident was caused solely by the defendant's negligence without negligence upon the part of, or imputable to, the plaintiff.
She was invited to leave the boat, when it was assumedly fast to the float, and, from the defendant's failure to provide a gangplank, she was justified in believing that it would remain against the float and that the designated pathway would continue safe for its purpose.
Under the circumstances, also, negligence of the defendant was to be inferred from the backward impulse of the boat, which the duty of exercising reasonable diligence for the safety of its passengers rendered it incumbent upon the defendant to avoid, if unable to avoid, to explain by satisfactory evidence.
The finding of negligence is not based solely upon the happening of the accident, as the appellant contends, but is supported by proof of the cause of that accident and thus of negligence in view of the nature of the cause.
The judgment should be affirmed, with costs.
DALY, P.J., and McADAM, J., concur.
Judgment affirmed, with costs.