The proof shows that the defendant, under a contract with the owner, put up fire escapes on a building in Yonkers.
The answer avers that the work was done by one Limburger, under a sub-contract with the defendant. The plaintiff, while walking along the street in front of the building, was struck by a falling chisel. She heard an alarm given, and was ahnost immediately struck. One man was at work in the upper story of the building in the fire escape. He was the only person seen by the plaintiff as she looked up. The proof also showed that Limburger was an employee of the defendant. There was proof tending to show that the only work done on the day in question on the front part of the house was on these fire escapes.
The case was sufficient to go.to the jury. The accident was one which would not ordinarily happen if due care and caution had been used, and in such cases the presumption of negligence is sufficient to call for explanation, and if this is not afforded the jury may find negligence. Mullen v. St. John, 57 N. Y., 571.
The judgment should be reversed and new trial ordered, costs to abide event.
Cullen, J.. concurs.