On appeal from the Supreme Court.
For the appellants, Joseph H. Gaudielle (James A. Major, of counsel).
For the respondent, Wall, Haight, Carey & Hartpence (Edward J. O'Mara and Gerald F. O'Mara, of counsel).
The opinion of the court was delivered by
RAFFERTY, J. This appeal is from a judgment entered against plaintiffs below by direction of the trial judge at the close of the entire case.
It was alleged in the complaint that on or about November 15th, 1939, Mary Piacente, a minor, having prepaid the required fare for her carriage between Weehawken and New York City, became and was a passenger aboard a certain ferry boat owned and operated by defendant, a common carrier. The ferry boat was equipped at both ends with gates extending across the width of the boat which, generally, were of the type commonly installed on ferry boats for the protection of passengers and vehicles. As the boat docked in the slip at New York City these gates were raised by an employee of defendant to permit passengers and vehicles to leave the boat and in this operation the index finger of the right hand of Mary Piacente caught in the gate, causing the injury complained of.
The infant plaintiff testified: "as the man was raising the gate to let the passengers off the boat, the gate started to come down. I put my hand up to stop the gate from falling on me," and in so doing her finger was caught and injured. On cross-examination this witness testified:
" Q. And as he raised the gate you walked forward, and as the gate was directly overhead * * * you noticed it was coming down on your head; is that right? A. Yes, as I was going forward. I was not directly underneath it. * * * Q. * * * How far away from it were you? A. I was about a foot, that is all. Q. How far away were you when the gate started to go up? A. About three feet. * * * Q. Where was the gateman standing? A. He was standing in the aisle, where the cars go out."
Anthony Piacente, a younger brother of the infant plaintiff, was a passenger with her on this occasion. His testimony
generally corroborated that of his sister. This witness testified:
"He [defendant's employee] was lifting up the gate. So when he lifts up the passageway for the people, the gate and vehicles also lifts up, and they didn't reach the post; they did not reach the post; and he walked away, and he was near the vehicle passage, and they started coming down again."
This witness observed that his sister reached up with her right arm to protect herself against the falling gate, and her finger caught ...