45 N.Y.S. 215 | N.Y. App. Div. | 1897
There is no dispute as to what caused the injury, and the single question presented is as to whether the defendant is the one responsible. If, as against him, we draw the inference most favorable to the plaintiff, that the. ring was detached by the bunting or 'flags which, caught by the wind, were, as expressed by some of the witnesses, “ flopping all over the building ”■ and, catching in the ring, brought it down and thus injured the plaintiff, there is still lacking in the proof a necessary link. The. defendant had no control of the building, and had no right to enter it except for the purpose of fulfilling the contract of decorating. When the accident happened he. had done this work and gone away, and it is not shown that he was on the premises or in the neighborhood for two full days prior thereto. His entering the premises after he had completed his Work, unless with the permission of the owner or contractor, - would have been a technical trespass; and this is adverted to merely for the purpose of showing that for what happened subsequent to his completing his contract with the bunting, he could not be held responsible. The evidence was directed to showing the condition of the bunting on the day of the accident •—- not the manner in which it was put up or how it was fastened or arranged at the time when the defendant completed- it; and as we have the evidence that men in the émploy of the contractor, by -adjusting ropes and fastenings, may have interfered to some extent with the decorations, it cannot be assumed that- the condition of the bunting and flags was the same on the day when the accident occurred as it was when the defendant completed his work. We have not only the evidence of interference by the contractor’s men, but also the further evidence that on the day of the accident there was a strong breeze blowing,
Upon these facts, the rule which the appellant has invoked of res ■ipsa loquitur is not applicable. Wherever that doctrine has been applied, and, from the mere happening of the accident to a passer upon the public street, a prima facie case held to have heen made out, it will be noticed on reading the cases that it was always against one who was in control or possession of the premises, building or property involved.
How far this rule might be applicable as against the owner or contractor, we should not intimate or determine in view of the voluntary action of the appellant in discontinuing as against them, it being sufficient for this appeal to determine whether a prima facie case of negligence as against this defendant was made out and which justified its submission to the jury. Considering the relation of the defendant to the building at the time of the accident, and for the other reasons stated, we think the disposition made by the learned trial judge was right.
The judgment should, therefore, be affirmed, with costs.
Rumsey, Williams, Ingraham and Parker,-JJ., concurred.
Judgment affirmed, with costs.