56 A.D. 378 | N.Y. App. Div. | 1900
Lead Opinion
The respondent, a boy about eight years old, while playing in a public street in the city of New York was struck by a brick which appears to have come from a building then being constructed. The plaintiff testified that he was playing upon some sand in the street when he was struck on the head. He did not see the brick, or whatever it was that struck him, nor did he know where the article came from. There was another witness called for the plaintiff who testified that he was standing on the opposite sidewalk from where the boy was playing; that he did not see the brick strike the boy, but “found it hopping on the scaffold; every part it would come to .it would strike against and I would say it struck the boy. * * * I heard the brick come tumbling down the scaffold.” On cross-
One of the defendants was called as a witness by the plaintiff, and testified that the defendants had a contract to construct the front of these buildings, Nos. 377 and 379 East Tenth street in the city of New York, and it was conceded that at the time of the accident the defendants were at work upon tile front of the building in question. There was also evidence that there were quite a number of other contractors who were employed or had contracts for doing a part of the work on the building. There seems to have been no evidence offered for the defendants, and at the close of the case the defendants’ counsel moved to dismiss the complaint or for a verdict for the defendants, on the ground that the plaintiff had failed to prove a cause of action andffiad failed to show negligence on the part of the defendants. The court reserved the decision of that motion and submitted three questions of fact to the jury, (1) were .the defendants guilty of negligence which was' the proximate cause of the injury complained of? to which, the jury answered, yes. (2) Was the plaintiff guilty of negligence which contributed to the injury complained of? to which the jury answered, no. (3) As to the amount of damages that the plaintiff sustained, to which the jury answered, $5,000. Whereupon the court denied the motion to dismiss the complaint or for a verdict, and directed a verdict for the plaintiff for $5,000, to- which the defendants excepted.
We think this case is controlled by the case of Wolf v. Ameri
In that case as in this, the injury was caused by a brick falling from a building in course of construction. In t'hat case the Supreme Court held that the defendant Downey, who had a contract with the owner of the building, and the defendant Weber, who was a subcontractor-to do the mason work upon the building, were liable. (Wolf v. American Tract Society, 25 App. Div. 98.) That judgment the Court of Appeals reversed upon the- ground that there was no evidence to show that the brick was allowed to fall by the negligence of either defendant or his employee. There was a dissent in that case which was upon the ground that the..contractors to do the mason work had a duty to guard and protect the loose brick so they could not fall a,nd injure persons passing upon the street; that the bricks were under their control and management;
It follows that the motion to dismiss the complaint should have been granted, and it was error to submit any question to the jury. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Yan Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Hatch, JJ., dissented.
Dissenting Opinion
As I view this ease, it is established that the defendants erected the front walls of the building and built the scaffolding for that purpose. The boy was injured by a falling brick which came bounding down the scaffold into the street where he was at- play. The only point upon which there is serious disagreement relates to the responsibility of the defendants for the act. The contention is that it is not shown that, either through themselves or their agents, they caused the brick to fall. The proof upon this point is that the brick came from the front of the building. This was the place
It may be that the facts in that case upon which to found liability were stronger than in the case at bar, but this fact does not require that we reach a different result when the proof is sufficiently strong to authorize an inference of responsibility ; and as I view this evidence, it was sufficiently strong to authorize the verdict which has been rendered.
For these reasons I am unable to concur in the views expressed in the prevailing opinion, and conclude that the judgment should be affirmed.
O’Brien, J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.