
    John Murphy, Respondent, v. Robert McWilliam and George McWilliam, Appellants.
    
      Negligence —failure to attach guy wires, used to support a derricli, to the posts at a
    
    
      right angle. •'
    
    In an action to -recover for injuries caused by the fall of a derrick, which, according to the expert evidence given upon the trial, should have been held by guy wires strung from posts at very nearly a right angle, there was, evidence from which the jury might infer that the angle Was much greater.
    
      Meld, that the jury were justified in finding that the defendants were negligent.
    Appeal by the defendants, Robert Me-William and another, from judgment in.the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of May, 1896,. denying the defendants’ motion for a new trial made upon' the minutes. ■
    The action is for negligence. The plaintiff was injured on April 6, 1893, at Latintown, H. Y., by the fall of a derrick erected by the defendants’ servants. At the time he was in the employ of the H euchatel Asphalt Company, which was doing the asphalting work upon a structure known as the Pratt Mausoleum. The defendants were engaged in laying the stonework upon the mausoleum. The fall of the derrick was occasioned by the pulling out from the ground of two posts, known as guy posts. There were six of these posts from which were strung wires, the other ends of which were attached, to the top of the mast of the derrick in order to relieve the strain put upon it by the weights lifted.
    Further facts are stated in the opinion.
    
      Abram I. Elkus, for the appellants.
    
      J. Lcmgdon Ward, for the respondent.
   Barrett, J.:

The plaintiff’s freedom from contributory negligence was clearly. established, but the defendants strenuously contend that there is no evidence in the case showing negligence in the construction or opera-. tion of the derrrck. There was, it is true, no expert testimony tending directly to show such negligence, hut we think that the jury'had the right to infer its existence from the proof. The plaintiff’s witness, Martin, a civil engineer, who had had much experience in the handling of heavy weights by derricks, testified, without contradiction, that the guy wires should be strung from the posts at very nearly a right angle. Ho direct evidence of the angle was given, but the plaintiff proved by two witnesses that the bark which had been on the posts that were pulled out was left in the holes, and that the earth around the holes was very little disturbed. "We think that the jury might draw from this a prima facie inference that the wires were strung at an angle considerably greater than a right angle, since, if the pressure had been exerted at a right angle, it seems .hardly possible that the posts should have been drawn but so cleanly, with little or no disturbance of the bark or the ground. This inference is not rebutted or' seriously weakened by the defendants’ evidence. ¡No evidence was offered, as would have been natural if any existed, to show that: the angle was, in fact, a right angle. - A number of witnesses testified that the guy posts were set into the ground at about an angle -of forty-five degrees. Even so, the angle of the ■ wires to the posts would depend upon-still another fact, viz., the distance between the pests and the mast of the derrick, the height of the latter.being known. The only evidence on -this head is that of the defendants’ witness, William, who did not measure the distance, but judged it to have been from 75 to 100 and 150 -feet. Such testimony is practically valueless.- But even the evidence that ' the posts, were set at an angle of forty-five degrees is by up means unshaken.; ¡None of the witnesses who testified on this point made any measurements or calculations. • They simply stated théir general ■ impression. Doubt is thrown upon its correctness, by the circumstances already referred tó, which were proved by the plaintiff’s witnesses. It seems impossible that the posts should have been drawn out as they were without disturbing the ground, unless they were nearer the perpendicular than an angle of forty-five degrees. One of the defendants’ witnesses denied- the fact to be as stated, and testified that the-ground was considerably torn up; but on this issue the verdict is conclusive. The defendants’ evidence as to the angle of the posts is weakened by the testimony of their own witness, Johnson, as to the manner in'which the posts were set. We think it could fairly have been inferred from this testimony that the posts were not set at anything like an angle of forty-five degrees. The defendants’ evidence upon this subject .is further shaken by direct evidence in rebuttal. This consisted of the testimony of O’Neil, a laborer, hired by the defendants to help in digging the post holes. He testified that the sides of the holes were straight up and down. Upon the whole evidence, we think that the jury were justified in finding that the guy wires were not attached to the posts at a right angle, -but at a considerably: ¡greater one; that such- a construction was negligent, and -that it caused the accident and the plaintiff’s-in juries.

It should also be noticed that the evidence as ■ to the manner of' lining the holes was not undisputed. The defendants’ foreman, Johnson, testified that they were lined at the bottom with stones.. There was proof that this is the usual and proper method of construction. But Johnson’s testimony was disputed by his helper, O’Neil, who said that no stones were used, and an issue for the jury seems to have been thus presented.

None of the exceptions taken by the defendants need be discussed. We have examined them, and do not regard any of them as well taken. A number of the exceptions to the. refusals to charge are untenable because the requests insisted, in different forms, upon the proposition that the plaintiff was obliged to prove his case beyond a reasonable doubt — a test not applicable to civil cases.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

Judgment and order affirmed,, with costs.  