
    WILLIAM K. CLARE, Plaintiff, v. THE NATIONAL CITY BANK OF NEW YORK, Defendants.
    While passing defendants’ premises, plaintiff was injured by a piece of wood falling upon him. Held, there was evidence tending to show the missile fell from the defendants’ premises; and, if so, it was prima facie proof of negligence against defendants.
    Before Monell, McCunn, and Fithian, JJ.
    
      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Monell and a jury.,
    The action was to recover damages alleged to have been sustained by plaintiff from injuries received through the negligence of the defendants. It is admitted in the pleadings that at the time of the injury complained of the defendants were the owners, and the occupants in part, of the premises known as the westerly part of No. 52 Wall street, in the city of New York, and also that at that time defendants were engaged in causing alterations to be made in and upon the premises. On the trial of the cause it appeared without dispute that the plaintiff was passing on the sidewalk in front of the premises, and was struck upon the head, knocked down, and considerably injured, by a board or plank falling upon him from above. The plaintiff was unable to tell from whence the blow came. Three witnesses were sworn for the plaintiff, in addition to his own testimony. One witness saw a piece of plank six or eight feet long falling and whirling through the air into the crowd of passers-by. Plaintiff was struck, but the witness did not state from whence the plank came. Another witness testified to the condition of the sidewalk at the place in question; that it was cumbered with blocks' of marble and rubbish. Mr. William E. Curtis, however, testified further, that he knew defendants’ premises, and that at the time the front was being substantially rebuilt; that at the time in question, he saw a board “ fall from a window ” in the front of defendants’ building into the crowd passing by, which scattered, and thereupon witness' saw the plaintiff remaining “ prostrate and senseless on the groundand that the plaintiff, when struck, was in front of the middle of the defendants’ portion of the building. Evidence was given as to the extent of the injury, when plaintiff rested. Whereupon, on motion of defendants’ counsel, the court dismissed the complaint, on the ground that there was no evidence to charge the defendants with negligence, and no case made to go to the jury. Plaintiff’s counsel excepted, and requested to have the evidence passed upon by the jury. The exceptions were directed to be heard in the first instance at the General Term. Defendants’ counsel now moves for judgment upon the order dismissing the complaint.
    
      Mr. Luther R. Marsh for plaintiff.
    Enough was proved to entitle the plaintiff to go to the jury.
    The ownership of the building by the defendants, its occupancy by the defendants, the alterations in the building then being made by the defendants, are all admitted in the answer.
    These alterations -were extensive, the whole front being substantially rebuilt, the sidewalk and street filled with rubbish by the defendants, and the board, doubtless used in the process of making such alterations and repairs, was permitted to come down from one of the windows in the front thus being altered and rebuilt. This established presumptively the connection of the defendants with the board and its fall, and threw upon it the burden of disproving such connection.
    At all events, we had a right to take the judgment of the jury on the question.
    The ruling of the court was a practical denial of all redress to the plaintiff, -and seemed to require that, unless some one was present, with his eyes fixed on the board, and saw the defend-. ants’ agency in its fall, at the precise instant of its fall, the plaintiff could never make out a case that could get to the jury.
    This cannot be the rule.
    
      It was enough, to prove circumstances from which the jury may infer neglect on the part of the defendants, and such circumstances were proved in this case.
    A verdict of the jury against the defendants upon this proof would never have been set aside as being against the weight of evidence.
    Courts and juries act on circumstances; draw inferences from circumstances; give verdicts and award judgments on circumstantial proof.
    If every fact must be seen by an eye-witness, or heard by an ear-witness, the range of judicial inquiry would be very much restricted (Johnson v. Hudson Riv. R.R. Co., 20 N. Y., 65 ; Hines v. Barton, 25 N. Y., 544; Field v. N. Y. Cent. R.R. Co., 32 N. Y., 339; Wolfkiel v. Sixth Avenue R.R. Co., 38 N. Y., 49 ; Ernst v. Hudson Riv. R.R. Co., 35 N. Y., 10).
    
      Mr. William H. Arnoux for defendants.
    There was not the slightest proof that the defendants were the owners or occupants of, or that any repairs or alterations were going on in, that part of the building from which the plank fell. There was no proof of human agency in connection with the falling of the plank, nor, if so, that the defendants were liable for the acts of such individual. There was no proof that there were any workmen employed by the defendants in the building at the time of the accident, or, if there were any workmen there, that they had any thing to do with the falling of the plank; or further, if any workmen there had any thing to do with it, that their actions were in the course of their employment as servants of the defendants.
    It is necessary for the plaintiff to establish by evidence, circumstances from which it may be fairly inferred that there is reasonable probability that the accident resulted from the want pf some precaution which the defendants might and ought to have resorted to (Daniel v. Met. Ry. Co., L. R., 3 C. P., 216,222.)
    
      "Unquestionably no one can be made liable for an act or breach of duty, unless it be chargeable to himself or to his servants in the course of their employment ” (Pickard v. Smith, 10 C. B., N. S., 480).
    The judge rightly refused to submit to the jury the question whether the plank that struck the plaintiff was permitted or caused to fall through the negligence of the defendants.
    There was no proof on the subject at' all; and if there were, the fact that the plaintiff voluntarily placed himself in a recognized danger would exonerate the defendants from all liability'.'
   Fithian, J.

In this case, I think the learned justice at the trial erred in' dismissing the complaint and withholding the case from the jury. In making alterations and repairs upon their building, the defendants were required to take all proper and needful care and precaution to prevent passers-by, on the sidewalk in front, from being injured by any object falling from defendants’ premises. If, with ordinary care and precaution, defendants could not prevent objects falling, it was their duty then to barricade the sidewalk and prevent persons passing in dangerous proximity. If the board or plank which struck plaintiff did in fact fall from the defendants’ premises, I am of opinion that, within the principle of the decisions cited by plaintiff’s counsel, such fact established, 'prima facie, a want of that proper and needful care which the defendants, for themselves and servants, were bound to take and observe in the premises (Lynch v. Burdin, 41 En. G. L. R., 422 Johnson v. Hudson R. R.R., 20 N. Y. R., 65 ; Hines v. Barton, 25 N. Y. R., 544; Field v. N. Y. Central R.R. Co., 32 N. Y., 339 ; Wolfkiel v. Sixth avenue R.R. Co., 38 N. Y. R., 49; Pigott v. Eastern Co. Ry. Co., 3 Maning G. & Scott, 229; Ellis v. Portsmouth and Roanoke R.R. Co., 2 Iredell, 138). That verdicts of juries are sustained, which are founded upon facts established by inference from other facts and circumstances proved, is the constant' experience of the courts. In this case, I think the jury would have been justified, and their verdict not against evidence, had they found (if permitted) that the plank causing the injury to plaintiff fell from the premises of defendants. And such finding would be sufficient, within the above-cited authorities, prima facie, to charge the defendants with negligence.

In the case of Norris v. Kohler, recently decided by this court, there was seemingly less evidence to charge the defendant with negligence than in the case under consideration. In that case the plaintiff was injured in the street by a horse running and having attached a wagon used for vending pies. The proof was that, immediately preceding the injury, the horse and wagon were in the custody of two young men (not parties to the suit), and being used for distributing bakers’ supplies about the city. The horse and wagon was stopped in front of the building of a dealer in such articles. One of the men in charge of the vehicle stepped inside; and in a minute after, the horse, with wagon attached and unattended, was seen running furiously along the street, one of the men before in charge following after. There was proof that the horse and wagon belonged to the defendant; but there was no proof that the men in charge, or either of them, were the servants of or in the employ of the defendant, or that the property was engaged in any business of the defendant. The plaintiff was nonsuited at the trial, on the ground that the proof failed to charge defendant with negligence in the premises. That decision was affirmed by the General Term of this Court. An appeal was taken to the Court of Appeals, and there the decision of this court was reversed and a new trial ordered. I have not seen the opinion in that case (if any was delivered), but 1 infer the Court of Appeals must have adopted the principle that, where an injury is caused by the negligence of some' person unknown, and such injury is inflicted through thé instrumentality of property owned by a defendant, such ownership alone is sufficient, prima facie, to charge such owner yith negligence in the premises. This is going much farther than is necessary to sustain a verdict for the plaintiff in the case at bar.

The order dismissing the complaint should be reversed, defendants’ motion for judgment denied, and a new trial ordered, costs to abide the event.

Monell, J.

(concurring). In concurring in the opinion that the exceptions should he sustained and the case sent back for a new trial, it is proper for me to state that the testimony of the witness William E. Curtis, which - now appears in the printed case, was not talcen at or introduced upon the trial. By stipulation between the attorneys of the respective parties, it was supplied after the trial, and inserted in the case by consent. Of course it did not come to my notice on the trial. The court is unanimous that without such testimony there was nothing to go to the jury, and it was therefore correct to dismiss the complaint.

The testimony of Hr. Curtis, however, which now forms a part of the case, is deemed by all of us to be sufficient to make out a prima facie case against the defendants.  