
    John Murphy, Respondent, v. Robert McWilliam et al., Appellants.
    (New York Common Pleas — General Term,
    December, 1895.)
    Negligence—Evidence.
    In an action for personal injuries sustained through the fall of a • derrick used by defendants in. hoisting stone for a building upon which plaintiff was employed under another contractor, evidence as to the' weight of a stone which appeared upon a diagram of the place made after the accident, and which was not shown to be the one'which was being hoisted at that time, and proof that the derrick was . ’ insufficient to support a stone of that weight were admitted under objection. EM, that the admission of such evidence was prejudicial error.'
    Appeal .from judgment ■ on verdict and' from an order denying a motion for a new trial.
    Action for damages for personal injuries sustained through the défendants’ negligence. . '
    
      Abm. I. Elkus, for appellants.
    
      Thos. M. North, for respondent.
   Bischoff, J.

For error in the reception of certain evidence which might very clearly have prejudiced the appellants, we are constrained to reverse this judgment.

The plaintiff sought to charge the defendants with an injury sustained by him Through the fall of. a derrick used "by them in hoisting and placing stone for a certain building, upon the erection of which building plaintiff was employed, but by , another contractor and in a different class of work.

In support of his case the plaintiff "offered in evidence a diagram, made a" few days after the accident, showing the position- of a certain stone upon the scene of operations, in the course of the hoisting of which it was claimed that the derrick gave way, and the dimensions of- this stone, as it appeared upon the diagram, were shown.

Under objection and exception taken by the appellants upon the ground that the stone in question had not been proven td be that actually in process of hoisting at the time of the- accident, a witness was permitted to testify .that such a stone weighed eight and one-half tons, and thereupon, an expert was called by the plaintiff who gave evidence, still under like objection and exception, that a derrick such as that used by the defendant was insufficient in strength to support a stone- of that weight.

At no time, although counsel had' promised to connect it, was any foundation for this evidence given during the trial, and while it may be, as claimed, that apart from the plaintiff’s proof the jury might have found an inference 'of negligence from the defendants’ own evidence, they were certainly not bound to do so, since the matter was quite open to question, and we cannot say that this unauthorized form of proof, as given by the plaintiff, did not have an effect upon the verdict.

The pqint was fully raised by the' defendants when the plaintiff rested, and although a nonsuit could not, upon the evidence, have well been directed at the close of the whole case, the error in the reception of the testimony noted was at no, time cured, nor were the jury instructed to disregard such testimony. . . -

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.

Daly, Oh. J., and Peyob, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  