Bishof v. Leahy

66 N.Y.S. 342 | N.Y. App. Div. | 1900

WOODWARD, J.

This is an action for negligence. The plaintiff was employed to do certain work upon a building on West Forty-Third street, in the city of Rew York, by a contractor independent of the defendants, who were engaged in doing the carpenter and mason work upon the building under separate contracts. While performing this independent labor the plaintiff was injured by the falling of a window frame and a portion of the bricks from the newly-laid wall from an upper story, and the learned court charged the jury that “such a falling from above of these articles upon a man engaged at work below naturally calls for an explanation. He was in no wise, so far as the testimony is concerned, associated with anything that led to the detachment of these articles, and caused them to fall down upon him at the place where he was at work; and the law, therefore, raises the presumption that somebody must have been negligent.” There was no exception to the charge, and the court charged substantially all of the requests of the defendants, so that the only question presented upon this appeal from the judgment entered upon the verdict of the jury, and from the order denying the motion for a new trial upon the minutes, is whether the evidence supports the verdict. Defendant Leahy had the contract for the mason work. The evidence shows that the wall of the building, on the side where the accident occurred, had been built up to the point where it was necessary to put in the window frames; that the defendant Herrel had the contract for the carpenter work; and that his men put the window frames in position, and fastened the one which fell with a single brace, nailed to the side of the frame, and to a joist put in for the floor. This work was completed before noon, and Herrel’s men left the upper portion of the building. Soon after 1 o’clock in the afternoon the brace which held the window frame was broken,—by what means does not-appear,—and it fell, carrying with it a portion of the wall, resulting in the injury complained of by the plaintiff. Leahy’s men were in possession of the upper story of the building at the time, and it is urged by the defendant Herrel that as the window frame was properly placed, and the accident occurred by the breaking of the brace, which, showed no inherent defects, the burden of explaining the accident was upon Leahy. On the other hand, it is claimed that the window frame was not properly braced, and that the accident was caused by the wind blowing it over. The jury took all of these matters into consideration, no doubt, in arriving at its verdict; and we are not prepared to say that the conclusion is not justified by the evidence. Some one was to blame for the falling of this window frame, and the resulting injury to the plaintiff. Both of the defendants were engaged in the work of placing these windows in the wall, and it is evident from the circumstances of this case that neither of them exercised that degree of care which might be said, as a matter of law, to exonerate them. The charge of the trial court pointed out the difficulties of arriving at a correct conclusion, and suggested what the jury might properly do in the various lights in which the case was presented, and we are of opinion that no better adjustment of the controversy is likely to follow in the event of a new trial. The verdict for $1,000 does not appear excessive, in view of the injuries which the plaintiff sustained. The judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs. All concur.