102 A.D. 168 | N.Y. App. Div. | 1905
The judgment should be reversed and a new trial granted, with costs to appellant to abide event.
The action was to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The evidence given by the plaintiff on the trial tended to show that the plaintiff was working for the defendant in unloading cars into a coal pit, and while so engaged a plank fell from a scaffold above upon him and caused the injuries for which the action was brought. The scaffold had been built on the day of, and some hours before, the accident. There was no direct evidence as to who built it or directed its construction. There was little, if any, evidence as to what caused the fall of the plank. There was some evidence by experts that the scaffold was not properly constructed so as to be safe as to persons working under it. It was alleged in the complaint among other things that the defendant was negligent in failing to furnish a reasonably safe place for the plaintiff to work by reason of the defective condition of the scaffold above him. The nonsuit was granted upon the ground of a failure by plaintiff to show that the defendant was guilty of negligence which occasioned the injuries for which the action was brought. The court held that there was no evidence that the defendant constructed the scaffold,
All concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.