
    Michael O’Rourke, Appellant, v. Guy B. Waite Company, Respondent.
    First Department,
    May 8, 1908.
    Megligence — obligations of contractor constructing building — injury to employee of other contractor.
    A contractor engaged in the construction of a building is bound to use reasonable care to see that the employees of other contractors working in the building are not injured by the fall of materials used by him in the prosecution of the work.
    The plaintiff, working in the basement of a building under construction, was struck by the fall of a piece of iron. The defendant, putting in a concrete floor, had not hoarded over the entire floor above the plaintiff, and was using pieces of channel iron to construct the floor. On all the evidence,
    
      Held, that the jury were justified in finding that the iron which struck the plaintiff was used by the defendant in the prosecution of the work.
    Ingraham and Houghton, JJ., dissented, with memorandum.
    Appeal by the plaintiff, Michael O’Rourke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 18th day of December, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Hew York Trial Term.
    
      Moses L. Malevinsky, for the appellant.
    
      William L. Kiefer, for the respondent.
   Scott, J.:

Plaintiff appeals from'a judgment dismissing his complaint.

The plaintiff was a bricklayer engaged in work upon a building on Riverside drive in the city of New York. He was working on the basement floor laying brick in a bay window at the front of the building. The defendant was a contractor engaged in laying concrete floors upon an upper story. The story upon which defendant’s men were working was boarded over, but the boarding did not extend over the bay window in, which plaintiff was working. In putting in the concrete flooring defendant used short pieces of iron, described in the case as channel irons, which were laid between the iron beams, and with these beams made a sort of webbing to hold the concrete. While the plaintiff was at work a piece of iron fell striking him upon the head and producing the injuries for which he sues. There was some confusion in the testimony as to the precise character and dimensions of the piece of iron which struck plaintiff, but there was testimony from which the jury would have been justified in finding that it was a piece of the channel iron used by defendant in the prosecution of its work. There were other contractors at work on the building, but the evidence was to the effect that none of them used pieces of iron similar to that by which plaintiff was struck. There can be no doubt that the defendant was bound to exercise a reasonable degree of care to see that other persons working in the building were not injured by the fall of materials used in the prosecution mi the work, and if the evidence wras sufficient to identify the iron which struck plaintiff with that used by defendant, the burden would fall upon defendant to show that it had not been negligent. (Wolf v. American Tract Society, 164 N. Y. 30.) In our opinion there was evidence to submit to the jury upon the question whether or not it was a piece of defendant’s iron which struck plaintiff.

If there was it was error to dismiss the complaint. The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Laughlin and Clarke, JJ., concurred; Ingraham and Houghton, JJ., dissented.

Ingraham, J. (dissenting):

I dissent. I think there was no evidence to show that the accident was caused by the negligence of the defendant or any of its employees.

Houghton, J., concurred.

J udgment reversed, new trial ordered, costs to appellant to abide event.  