
    John Dohn, Resp’t, v. John Dawson et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    1. Negligence—Risk.
    A laborer, while lawfully on the sidewalk delivering material for a building, does not assume any risk of bricks falling on him from scaffolds erected and used by contractors.
    2. Same—Evidence..
    Where the court offers to permit the defendant’s counsel to show that there was a scaffold there at the time, a refusal to permit him to ask a witness the question “ had there been a scaffold erected on the outside of this building ? ” is not error.
    3. Same.
    The evidence, in this case, was held sufficient to sustain the finding that defendant’s workman let the brick fall and that it struck plaintiff.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      O. M. Earle, for app’lts; E. J. McGuire, , for resp’t
   Yan Brunt, P. J.

The defendants were masons, who had a contract from the city for the mason work of the Criminal Courts • building. There were at the same time many workmen employed by others having independent contracts with the city. • The plaintiff was employed by an independent firm of contractors, who were delivering terra cotta at the building. On May 8, 1892, the exterior walls of the building had been constructed to about the fourth story on the Franklin street side. In the face of the wall were spaces for windows. Inside the wall were scaffolds erected by the defendants for their workmen. On the date mentioned two of the defendants’ employes were engaged in building a scaffold above another scaffold, upon which were a quantity of bricks; the planking of the lower scaffold being taken out for the purpose of putting it upon the upper scaffold, and the workmen removing the bricks from the lower scaffold and placing them upon the upper scaffold as the wdrk progressed. One of these workmen heard a brick rattling down off the scaffold; and heard it strike something, but did not .know whether it went inside or out. In any event, he went to the window, and, looking out, saw the plaintiff, about fifteen or twenty feet from the corner of the building, holding his head. Another witness testified that he was a fellow workman of the plaintiff, and was unloading a truck, and the plaintiff was helping him to take off his load; that the plaintiff was not there more than a minute or two when something struck him on the head ; that the witness did not see the thing strike him, but when it struck it bounced on the ground, and the witness looked and saw that it was half a brick, or a little over. It was claimed upon the argument by the counsel for the appellants, and is claimed upon his brief, that there is evidence that there were plumbers at work upon this wall, who were cutting out brick, using cold chisels and hammer and tamping irons, with which to tamp oakum into a waste-pipe joint that they were cutting out. We have examined the case with care for the purpose of finding evidence that any plumbers were cutting any channel into this wall. The evidence in regard to the plumbers is that they were in a recess, putting in a waste-pipe, and that they had two cold chisels, a hammer, and a tamping tool, and were at work in a recess that sets in the building, and that they were calking. There is no evidence that they were cutting away any brick. The evidence in the case shows that the only persons who were working'with brick were these employes of the defendants who were moving this scaffold.

It is urged that it is not shown that the defendants were guilty of any negligence, and that it is purely a matter of inference that any brick fell because of any action of the employes of the defendant. This is undoubtedly true. But in the case of a murder, where a bullet is found in the body of the deceased, and the accused is shown to have pointed a pistol at the deceased and to have fired it off, it is only a matter of inference that the bullet came from the pistol. So in the case at bar we find that one of these workmen testified that a brick fell from the platform, and at about the same time the plaintiff was struck, and, although no one saw the impact of the brick, yet as it bounded from his head it was seen by another witness. It does not require a very great deal of inference to come to the conclusion, under evidence such as this, that the brick which was let fall by the defendants’ workmen was the one that struck the plaintiff.

It is further urged that the plaintiff took the risk of the. situation at the time. We are not aware that, being upon the sidewalk, he took the risk of any falling brickbats that might be carelessly dropped down upon his head by the employes of the defendants. He had the right to be upon the sidewalk. He was there attending to his work, and he had no reason to anticipate such carelessness upon the part of defendants’ employes.

It is urged that the plaintiff has not shown absence of contributory negligence, and that it cannot be inferred from the proof of the accident and of negligence on the part of the defendants. This is undoubtedly true, but the facts are shown, and the plaintiff has proved that he was where he had the right to be. He had no reason to expect, as already suggested, that brickbats would be showered down upon his head.

The exception to which attention is called in respect to the building of the scaffold on-the outside is untenable. The court said that it would allow the counsel to show, if he could, that there was a scaffold there at that time. That was all that it was bound to do. It was not bound to go through all the different steps which are necessary to be taken to erect a scaffold. The question was, Had there been a scaffold erected on the outside of this building?” It does not necessarily follow that, if a scaffold is once erected on the outside of the building, it exists forever. The question' was too indefinite, too remote, and clearly improper.

The verdict undoubtedly, was large, but we do not think it was so excessive as to call upon us to reverse the judgment. The judgment and order appealed from should be affirmed, with costs.

All concur.  