
    Frank Furlong, Respondent, v. Duncan I. Roberts, as President of the United States Express Company, an Unincorporated Joint Stock Association Consisting of More Than Seven Members, and J. H. Drew & Bro., Incorporated, Appellants.
    Second Department,
    November 13, 1914.
    Negligence — injury to pedestrian hit by timber pushed along by a wagon—proximate cause — inconsistent findings.
    In an action for personal injuries, it appeared that an employee of the defendant express company drove his wagon so that it collided with the end of a timber and pushed it along until it hit the plaintiff’s foot; that the timber, which was twenty-three feet long and ten inches square at the ends, and weighed about 800 pounds, had been placed by another defendant along the side of the street to act as a fender or buffer for bridge supports, and that said timber had not been fastened.
    Evidence examined, and held, that the express wagon, negligently driven against the end of the timber, which in turn was pushed against the plaintiff, was the sole proximate cause of the accident;
    That the finding that the person so placing the timber was negligent is inconsistent with the finding that the express company was also negligent; therefore, a judgment against both defendants should be reversed and a new trial granted.
    Appeal by the defendants, Duncan I. Eoberts, as president, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of June, 1914, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 23d day of June, 1914, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frederick G. Curry, [Branch P. Kerfoot with him on the brief], for the appellant Roberts.
    
      Warren Bigelow, for the appellant J. H. Drew & Bro., Incorporated.
    
      Frederick S. Martyn, for the respondent.
   Thomas, J.:

The defendant Drew laid a beam, twenty-three feet long and ten inches square, on the south side of Pine street in the city of New York, to defend supports of a wooden bridge over the street. An express wagon, returning through the street, collided with the end of the timber and pushed it along so that it hit the foot of the plaintiff, who was standing a short distance to the eastward of it. The plaintiff has recovered for his injuries against Drew, who placed the timber, and the express company. The evidence shows beyond question that the driver negligently drove against the end of the timber and shoved it along several feet, although it weighed some 800 pounds. But the contention is that the collision was not the proximate cause of the accident, but rather the failure of the defendant Drew to fasten the stick so that it could not be driven by such contact. There was some impairment of the use of the street by reason of the bridge, but a nuisance is not charged. The situation suggested to the driver the necessity of increased vigilance, but his conduct in driving against a timber ten inches square, where, as he says, on account of an obstructing team there was not room to pass, indicated to the jury culpable absence of requisite care. The wagon drove the timber against the plaintiff, and so became a direct cause. True, if the timber had been fixed solidly, the negligent blow of the wheel against it would not have disturbed it. But Drew did not owe the express company the duty of so fastening the timber that its negligently colliding wagon could not dislocate it. The duty of the driver was to use proper care to avoid it. The stick stretched for twenty-three feet along the curb, and whatever other timbering was adjacent to it. It warned the driver to keep off, and physically kept the hubs of the wheel away from the supports of the bridge, and when the wagon pushed it against the plaintiff the act was as proximate and wrongful as if the wheel had made direct contact with the man, provided in ordinary prudence ■ the disturbance of the timber to such an extent would be anticipated. It should be considered that the wagon did not merely rub against the side of the timber so that it would act to fend and divert it, but that it was driven into the end as if to mount it. So far as known, if the timber had been required to act as a buffer between the wagon and the supports, it would not have been disturbed by an oblique or slanting blow. Indeed, for that purpose it was placed there, and it should have been so fixed as to meet such use. A driver might well conclude, in making his way through a restricted way, that rubbing even roughly against a fending timber would not dislodge it, and that such happening was prevented by the weight of the timber or fastenings. But the conviction would not so easily obtain that he could, without injury, bluntly hit the head of the timber and convey directly to it such impelling force as the momentum of his wagon would impart. In my judgment, the wagon driven against the end of the timber, and that in turn against the plaintiff, was a proximate cause of the accident. Was it the sole proximate cause, or was the failure to lodge the timber a proximate cause ? It is not proven that it was negligent to leave the timber weighing 800 pounds unfastened, so far as the purpose of it was to act as a guard. If the contact of teams with its side would, in the minds of prudent men skilled on the subject, require that for its proper purpose it should be held down by something beside its weight, then the jury should decide whether the omission was negligent. But in the case at bar the express wagon subjected the timber to a force abnormal to the expected use, to a strain that it was not intended to withstand. So the question is brought to this — did Drew owe to people using the street the duty of so lodging the timber that it could not be driven along by a wagon wheel negligently striking against its end % The hare end of the timber occupied ten square inches of the street. The street was darkened by the bridge, the side timbers and the fence at the north curb. The timber did not begin at Broadway, but was interior, and something that interrupted the curb line. It was an obstruction that would come with some surprise to the driver, and thereby make unexpected and unusual demand upon his caution and skill. If, under such conditions, drivers using care would be subject to collision with it, I think that a jury could find Drew negligent in leaving it so that it might be dislocated. Should Drew have considered that teamsters would negligently drive against it, and have warded off the effect of their negligence by some warning, or by anchoring the stick ? This is no more than to say that Drew was not negligent in leaving the end of the log unguarded or unanchored, provided teamsters, in the exercise of due care, would not run against the end of it. Drew had a right to conceive that drivers would see what was discoverable in the exercise of due care. In the present case the jury has found that the driver was not in the exercise of such care. Indeed, the evidence clearly warrants the finding. But the finding that Drew was negligent is inconsistent with the finding that the express company was negligent. If the driver in the exercise of due care would not avoid the log, then Drew negligently left it there unguarded and unfastened. But if under the circumstances a careful man would not drive against it, Drew was not required to consider that the timber was subject to such collision. He could anticipate that drivers would do their duty, and that it was not necessary to guard against a wrongful act.

The judgment as to Drew should be reversed, and as the view here expressed was not stated to the jury, the judgment and order as to the express company should also be reversed and a new trial granted as to both defendants, costs to abide the event.

Jenks, P. J., Oarr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted as to both defendants, costs to abide the event.  