
    Thomas Reilly, App’lt, v. Atlas Iron Construction Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    Question of fact—Negligence.
    The evidence was held sufficient, in this case, to present a question for the jury as to whether the brick were knocked down by the derrick, though there was no direct evidence of such fact.
    Appeal from a judgment dismissing the complaint.
    
      Charles J. Patterson, for pl’ff; Charles G. Nadal, for resp’t.
   Dykman, J.

This is an an appeal by the plaintiff from a judgment entered upon a dismissal of the complaint at the circuit. The action was brought for the recovery of damages for negligence, and the material facts in the case are these: The plaintiff was at, work in the cellar of a house in the course of construction in-Brooklyn. The building was to be about 100 feet square, and at-the time of the accident the brick walls were above the level of the sidewalk. The beams of the first story had been set in place-on the east side, and upon the beams near the rear of the building there was a platform of planks about 26 feet long and 15 feet, wide. There was a pile of brick upon that platform about 12 or 14 feet square, and about 3 feet high. On each side of that pile of brick there was an eight-inch wall of brick, built dry, but. the bricks were placed crosswise, und built in at the ends and corners, so as to bind the walls. It had remained in the same condition for about two weeks, and there was a margin of about-the width of two planks outside of the brick pile. There was am open space in the rear of the first floor, which was not covered by beams. The defendant was doing the iron work upon the building, and, in connection with the operations thereon, used a large derrick, which rested on the beams of the first story. The derrick consisted of two heavy upright timbers, with their lower ends resting upon a crossbeam, with wheels underneath it, upon which the derrick could be moved. The men in the employ of thfe defendant had occasion to move the derrick from the front to the rear of the first floor of the building, and this is the testimony of the witness who gave an intelligent account of the occurrence:

“ I was on the premises at the time the accident happened. I was in this open space in the cellar, shoveling sand at the time, j mean that space in the rear of the cellar which was not covered by beams. My duty there was filling sand : filling these barrels for Reilly and other men, who were carting them away. The barrels , were being carted away at that time. Where I stood there was nothing above my head. I saw the men of the Atlas Iron Construction Co. moving the derrick. They were moving it from the east. They were facing it around to the west of the building then. I could not say whether they moved it with bars, or shoved it with their shoulders. They were pushing it. Any way, I saw them come past the corner of the pile of bricks. I was looking at them. The corner next to Smith & Gray’s toward the rear of the building. That would be the southeast corner of the pile of bricks. When the men where moving the derrick past the southeast corner of the pile of bricks, the bricks fell down. They let the derrick stand there until the man was picked up. Just before the bricks fell down, they were moving the derrick. I could not say whether the derrick hit the brick or not, but it was up close to it, against the brick; I could not say touching them. * * * These men were moving the derrick up to the time the brick fell.” On his cross-examination the witness said:

“ They stopped the derrick as soon as the brick commenced to fall. They did not stop the derrick till the brick commenced to fall. This open space came, to the best of my knowledge, five or six feet to the pile of brick. This derrick, from one upright to the other, may be six or seven feet. It was moving on rollers. They have two wheels under it.”

A number of bricks fell upon the plaintiff, and injured him very seriously. There is no question respecting the negligence of fellow servants involved in this case, as the plaintiff and the men who moved the derrick were servants of different masters, and, therefore were not coemployes. Sanford v. Standard Oil Co., 118 E. Y, 571; 29 St. Rep. 855; Sullivan v. Tioga Railroad Co., 44 Hun, 304; 7 St. Rep. 627. Neither can there be any serious question respecting the negligence of the men who moved the derrick if they caused it to collide with the brick, and precipitate them into the cellar. They knew or should have observed that the plaintiff and others were at work in the story below. The open spaces were sufficiently large to enable them to see men at work in the cellar, and they must be held to have known that the movement of the derrick against the brick would precipitate them into the cellar, in the midst of the men at work there. Under such circumstances, the action of the defendant’s men in charge of the derrick was careless and dangerous if they moved it against the brick. It becomes necessary, therefore, to inquire and determine now whether the evidence was sufficient to justify a jury in finding that the defendant’s men moved the derrick against the brick and caused them to fall into the cellar, and injure the plaintiff. The following facts are material upon that question : The pile of brick rested upon a level platform, and was surrounded and supported by a wall of brick eight inches in thickness ; that is, the brick were placed lengthwise, and laid up dry. It had remained in the same position about two weeks. The floor upon which it was built extended outside of the wall about the width of two planks. There is no reason to suppose or believe that the brick would- have fallen without interference, and there was no disturbing cause present when they fell, except the derrick. The brick fell when the men were moving the derrick past the southeast corner of the pile. “ Just before the brick fell, they were moving the derrick. * * * These men were moving the derrick up to the time the brick fell.” From the facts established by the evidence, and from the circumstances surrounding the occurence, the rational conclusion seems to be that the defendant’s men, in moving the derrick, caused it to impinge against the pile of brick, and that such impingement displaced the brick, and precipitated them into the cellar, upon the head of the plaintiff, and inflicted the injuries for which he seeks compensation in this action. The circumstances are inconsistent with any other hypothesis, and the falling of the brick can be accounted for upon no other theory. Even, however, if different minds might reach diverse conclusions, and a jury may draw a different inference, the case is yet a proper one for the determination of a jury. It cannot be said that our conclusion is destitute of justification; and if a jury should draw the same inferences that we do from the testimony, and find a verdict in favor of the plaintiff, it would not be disturbed by the court for want of support in the evidence. Our conclusion is that the case is a proper one for the determination of a jury, and that the judgment should be reversed, and a new trial granted, with costs to abide the event.  