
    John Dohn, App’lt, v. John Dawson et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    
    
      ■ Negligence—Presumption.
    In case a wall of masonry for a building is being constructed contiguous to the sidewalk of a public street in a large city, and it is proved that material falls therefrom or from a scaffold and injures one lawfully on the sidewalk, coupled with proof that the sidewalk was not covered with platforms, barricaded or in any wise guarded, it is sufficient to raise a presumption that the builder was negligent.
    Appeal from a judgment, dismissing the complaint
    This action was brought to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendants and of their employes. In May, 1892, the new criminal court building was being erected for the city of New York on the block bounded north by White street, east by Center street, south by Franklin street, and west by Elm street. The defendants, as partners under the firm name of Dawson & Archer, were in that month engaged in constructing the masonry of said building, under a contract with the city. The plaintiff wás an employe of Healy A Earl, a firm which furnished the terra cotta for the building. Whether they furnished it under a contract with the city, or under a contract with Dawson & Archer, does not appear. On May 8, 1892, the exterior walls of the building had been constructed to a point about 10 feet above the second story, in which walls were open spaces for windows. Inside of the walls were scaffolds erected by the defendants for their workmen. On the date mentioned two of the defendants’ employes, John Connelly and Peter Judge, were engaged in removing bricks from a lower to an upper platform of the scaffold on the inside of the Franklin street wall. The upper platform was about 4 feet above the lower one, and crossed an opening for a window on Franklin street, which opening was 10 or 15 feet east of the corner formed by the intersection of Elm and Franklin streets. At this time there was no scaffold outside of the exterior wall on Franklin street. ■ On May 3d the plaintiff was unloading terra cotta from a truck belonging toHealy and Earl, which stood in Franklin street near the corner of Elm, and nearly under the window opening mentioned, and underneath the place where Connelly and Judge were moving bricks. The truck was backed up to the curb of Franklin street, and as the last piece of terra cotta was taken from it the plaintiff stepped from the truck to the sidewalk," and was immediately struck on his head by a brick, and injured. The foregoing facts were not disputed on the trial, and at the close of the plaintiff’s case he was nonsuited.
    
      Edward J. MecGuire, for app’lt; Charles N. Earle, for resp’ts.
   Follett, J.

The evidence was quite sufficient to have authorized the jury to find that the plaintiff was injured by a brick which fell from defendants’ scaffold. Connelly, one of defendants’ servants, who was engaged at the time in removing bricks from the lower to the upper platform of the scaffold, testified :

“ Q. Do you remember how the accident happened to Mr. Dohn? A. I remember that there was a brick rolled off somewhere or another, but I can’t say whether it came off the scaffold, or where it came off to be certain, but the brick rolled off, and we looked through the window, and I saw a man had his hand on his head. At the time I did not know who it was. * * * Q. How did this brick escape? A. 1 can’t tell you. Q. Did it escape' from your hand ? A. Ho; it did not escape from my hand, as I remember of. I was upon the scaffold, and it was all right, that I could see, and it may have dropped from the pile of bricks up above. There was naturally a few bricks one side, and you couldn’t very well see where you are putting them; and it may have rolled off that heap, and out of my hand. I can’t tell. Q. Did you hear a brick clattering down the side of the building ? A. Yes; we heard it rattling somewhere. I couldn’t see. Q. Was there any one else on the platform, and who was he ? A. Peter Judge. Q. Was there any one else but you two there? A. Ho; notas I can recollect. Q. Was there nobody else handling brick except yourself? A. Ho; but myself and this other man. Q. When you heard the brick clattering down the side of the building, did you hear it strike the window sill? A. I heard it strike against something, but I cannot tell what it was. Q. And did you then run to see whether you had caused any damage? A. I had just about three feet to go to look outside, and I could not see whether the brick dropped or not, but I saw a man had his hand on his head, and I thought from that there was somebody hurt. Q. (indicating). Do you identify this as the man who was struck? A. Yes. Q. The plaintiff, Mr. Dohn ? A. Yes.”

. Grarrity testified that he saw the brick fall from above, and strike the plaintiff. He said he did not see the brick at the moment it hit the plaintiff, but saw it -before it struck the sidewalk, and picked it up. There is other evidence corroborating Connelly and Grarrity which renders it highly probable, if not certain, that the plaintiff was injured by a brick which fell from defendants’ scaffold, and through the opening for a window.

The next question presented is, was there sufficient evidence of. want of care by defendants to sustain a finding that the brick fell by reason of their negligence ? The principal grounds for imputing negligence to them are : (1) Their failure to maintain scaffolding or platforms outside of the exterior wall of the building on. Franklin street, or other guards, so as to protect persons lawfully on the sidewalk from being injured by falling material; (2) in removing bricks in the manner described from the lower to the upper platform, without closing the opening for a window so as. to prevent the bricks from falling through the opening and into the street. In case a wall of masonry for a building is being constructed contiguous to the sidewalk óf a public street in a large city, and it is proved that material falls therefrom or from a scaffold and injures one lawfully on the sidewalk, coupled with proof that the sidewalk was not covered with platforms, barricaded, or in any wise guarded, it is sufficient to raise a presumption that the builder was negligent. Jager v. Adams, 123 Mass. 26 ; Clare v. National City Bank, 1 Sweeney, 589 ; Eccles v. Darragh, 48 Super. Ct. 528; 2 Shear. & R. Meg. (4th Ed.) 361; 1 Thomp. Meg. p. 347, § 10; Cooley, Torts, 607; Bish. Noncont. Law, 440; Elliott, Roads & S. 546. In Pearson v. Cox, 2 C. P. Div. 369, and Vanderpool v. Husson, 28 Barb. 196, the defendants were held not liable for the falling of material, but it was upon the ground that the workmen who were negligent were the employes of a subcontractor, and not of the defendants. It was assumed in both cases that, if the master of the workmen had been sued, he would have been liable. The rule above declared is necessary for the protection of those having occasion to use the sidewalks of public streets. The evidence as to how the accident occurred is most usually wholly within the knowledge of the builder or of his employes, and the person injured has no means of proving precisely how or why the accident occurred. The first warning of danger that he has is his injury, and then he has no opportunity to investigate the cause. It is not asserted that the plaintiff, by his own negligence, contributed to the injury.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.  