
    William E. Earl, Adm’r, Resp’t, v. George W. Crouch, Jr., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    3. Negligence—Insecure lumber piles.
    Piling lumber adjacent to the sidewalk of a city street in sucha manner that the slight force that can be applied to it by a child will suffice to topple it over, is reckless, culpable negligence.
    3. Same—Evidence.
    In an action for injuries caused by the fall of such a pile of lumber, evidence that other dealers were accustomed to leave their piles unbound when delivering lumber in small quantities, is incompetent.
    Appeal from a judgment upon a verdict in favor of the plaintiff in a case tried at the Monroe circuit in January, 1889.
    
      William F. Cogswell, for app’lt; Raines Brothers, for resp’t.
   Lewis, J.

The plaintiff, as administrator of the goods, etc., of William E. Earl, Jr., deceased, brought this action against the defendant to recover damages for the death of the deceased by the negligent act of the defendant. The defendant caused to be placed near the sidewalk upon Brighton avenue, in the city of Rochester, a pile of lumber five feet wide, and three feet to three feet six inches high. That part of the pile which caused the deceased’s death was composed of hemlock lumber two inches thick and six inches wide, and from twelve to fourteen feet long.

The lumber was piled by placing one piece over another in tiers.

Nothing was used to bind the tiers together. The tier nearest the sidewalk leaned about two inches from perpendicular away from the balance of the pile. The deceased was a child four years and eleven months old, residing upon the street near the pile.

He went from his home and was found dead under the lumber which composed the tier, next the sidewalk. All this tier, except the three lower pieces, had fallen out towards the sidewalk upon the child. The position of the deceased’s body and arms indicated, that he had taken hold of the lumber with his hands with a view probably of climbing upon the pile, and thereby caused the lumber to fall.

Questions of fact- are not before us for review; the appeal is-from the judgment only.

The appellant does not claim that the child was sui juris, or that its parents were guilty of negligence contributing to its death. At the close of the testimony the defendant’s counsel asked the: court to direct a verdict for the defendant

The request was refused, and defendant duly excepted. There-was abundant evidence that the lumber was piled in a negligent, careless manner, instead of piling it so that the tiers would rest, against and support each other; the tier that fell was so piled that the slight force applied to it by the child toppled it over. Fixing such a trap upon a street in an inhabited part of a city, with the strong probability that children would be playing about, it at all hours of the day, was reckless, culpable-negligence.

The question whether the timber should have been bound was-litigated.

The defendant was permitted against the objections of the-plaintiff to prove by dealers in lumber in Bochester that it was-not customary to use binders when delivering lumber in small quantities.

The manner of piling this lumber was fully described to the-jury, and they were competent to decide whether it was in a safe-condition.

Evidence that other Bochester dealers were accustomed to leave: lumber in the condition this was, was incompetent, and is so decided in many cases. In Wright v. Boller, 42 Hun, 77; 3 N. Y,. State Rep., 495, it was held that such evidence was incompetent..

Exception was taken to the charge of the court “ that in coming to the conclusion whether the lumber was piled properly, with the ordinary care of a prudent man, the question for you is not what men do do, but what men ought to do.” We find no error here; it was within the doctrine of Wright v. Boller.

Negligent conduct on the part of other dealers could not make a negligent act proper.

The judgment should be affirmed, with costs of the appeal, against the appellant

Dwight, P. J., and Macomber, J., concur.  