Morris v. Strobel & Wilken Co., 30 N.Y.S. 571

Morris v. Strobel & Wilken Co.

30 N.Y.S. 571 | N.Y. Sup. Ct. | 1894

VAN BRUNT, P. J.

This action was brought to recover damages sustained by the plaintiff by being struck by a sign which had been attached to the defendants’ building, and which fell and struck the plaintiff. There was no question but that the sign belonged to the defendants, had been put up by them in front of their building, and that it fell on the day in question; and the jury found that it struck the plaintiff, and that she was severely *572injured thereby. The court held upon the trial that the plaintiff had made out a case to go to the jury, without showing affirmatively that the sign in question had been defectively constructed;: and that the fact of its having been constructed by the defendants and attached to their building, and that it fell in the public street, without any apparent reason for so doing, called upon the defendants to show that they were without fault. It is urged upon the part of the defendants, however, that the learned court erred in the rule in respect to negligence in that the case at bar was not one in which the maxim, “Res ipsa loquitur,” was applicable,, and that the rule has been established that this maxim does not apply except where contractual relations existed between the parties. It is undoubtedly true that expressions may be found in opinions to support the contention of the appellant, but an examination of the adjudications upon the subject shows that it is not a correct statement of the law. A leading case upon this subject is that of Kearney v. Railroad Co., L. R. 5 Q. B. 411; same casein the exchequer chamber, L. R. 6 Q. B. 759. The facts were that the plaintiff was passing on a highway under a railway bridge, when' a brick fell, and' injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron-girder bridge, resting on iron piers on one side, and on a perpendicular brick wall, with pilasters, on the other, and the brick fell from the top of one of' the pilasters, where one of the girders rested on it. A motion was made for a nonsuit, on the ground that there was no evidence of negligence to leave to a jury. The court of queen’s bench, by a divided vote, held that this was a case to which the maxim, “Res ipsa loquitur,” was applicable; or, in other words, that there was prima facie evidence of negligence. The principle stated was that whenever it is a defendant’s duty to use reasonable care to keep a bridge or other structure or premises in a proper condition as it respects persons passing along the highway, and these are out of condition, and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was-bound to use; and that the absence of that care may fairly be presumed from the fact that there was the defect from which the accident had arisen. This principle was unanimously affirmed in the court of exchequer chamber. In Byrne v. Boadle, 2 Hurl. & C. 722, the facts were that an injury was caused by the falling of a barrel into a highway from the window of a shop. In discussing the question of the proprietor’s liability, Pollock, C. B., said:

“There are many accidents from which no presumption of negligence can arise, hut this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out; and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is-injured by something falling upon him, I think the accident would be prima facie evidence of negligence.”

In Mullen v. St. John, 57 N. Y. 567, various other cases are cited in addition to these, illustrating the same rule. Therefore, when. *573the plaintiff was passing along the public street, she was entitled to immunity from injury by the dropping of appendages to buildings erected along the same; and when she was injured by the fall of such an appendage it became the duty of the owners of that -appendage to show that they used reasonable care in its construction and maintenance, and that the accident happened without any fault or negligence upon their part. In the case at bar an attempt was made to show that this accident occurred by reason of a high wind which was prevailing at the time, and that it was therefore to be considered as an act of God, for which the defendants could not be held responsible. The evidence in the case showed that at the time of the happening of the accident the wind was blowing at the rate of about 19 miles an hour, and that it increased subsequently to 25 miles an hour, and three or four hours later to 31 miles an hour. It further appears that a wind of 19 miles an hour is not an unprecedented one in this city, but one which frequently occurs, although the average rate of wind during the summer months is from 8 to 9 miles an hour, and during the winter months from 11 to 12 miles an hour. It appeared further that a wind from 25 miles an hour up is known as a high wind. This evidence shows beyond question that there was no extraordinary stress of weather, •and that the falling of the sign was not to be attributed to any such cause. In the erection and maintenance of these appendages the defendants were bound to secure the same so that they would not only be equal to the ordinary known vicissitudes of the weather, but would be able to withstand the force of gales which experience has shown to be liable to occur. The defendants in this action have wholly failed to meet these requirements. They have shown how this sign was attached to their building, and the manner in which it was secured; but we are left in utter ignorance as to whether it was constructed in a manner proper for the use to which it was put, as no evidence was offered upon this point, and it is apparent from the fact that it fell in a moderate wind that it was insufficient for the use for which it was constructed. It is also claimed upon the part of the defendants that the damages were excessive. Without discussing at length this proposition, we do not see, upon an examination of the evidence, that we can interfere with the verdict of the jury upon this ground. Judgment and ■order appealed from should be affirmed, with costs.

BARRETT, J., concurs. PARKER, J., dissents.