Kiers v. Rathjen

The plaintiff, the owner of a coal boat, sued to recover for damage done to his boat. The plaintiff’s claim is that the boat was carrying a consignment of coal to the defendant and that the boat was damaged by the negligent use of the “ digger ” employed by the defendant in unloading his boat. The defendant pleaded a general denial. One of the issues raised by the pleadings related to whether or not the defendant’s employees unloaded the boat. The evidence of the plaintiff upon this point was indefinite and inconclusive. The defendant attempted to prove that the coal had been consigned to the Jurgen Rathjen Company and that its employees unloaded the boat. The trial court excluded this evidence upon the ground that these facts could not be proved under a general, denial. In this ruling the learned trial judge erred. The plaintiff’s contention being that the employees of the defendant caused the damage to his boat, it was competent for the defendant, under a general denial, to prove that the damage complained of was caused by others for whose acts the defendant was not responsible. Griffin v. Long Island R. R. Co., 101 N. Y. 348, 354; Demarest v. Flack, 128 id. 205.

The judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Gildersleeve, MacLean and Seabury, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.