
    Kate E. Clarke, App’lt, v. John D. Crimmins, Resp’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed July 18, 1890.)
    
    Negligence — N OHSTJIT.
    Defendant was engaged in digging a trench in the street and had constructed a bridge ever it. This had existed for ten days. A loose beam lay on this bridge which was occasionally knocked out of place and replaced by defendant’s laborers. A passing cart ran on one end of the beam and tilted up the other end, which struck plaintiff on the head. Held, that these facts justified an inference that the beam had been placed in that position by defendant or his servants, and if so he was guilty of negligence and could not be relieved from liability therefor because the driver of the cart was also negligent, and that a nonsuit was improperly granted.
    Appeal by the plainitff from a judgment rendered in favor of the defendant, upon a dismissal of her complaint at circuit.
    
      Joseph S. Auerbach and Francis P. Lowrey, for appl’t; David S Ogden, for resp’t
   Barrett, J.

The real question upon this appeal is whether the defendant was responsible for the existence, at the point in question, of the piece of timber which injured the plaintiff. If he was, then I see no reason for the nonsuit It was negligence to leave an unsecured beam loose at such a place. At all events, the question of negligence was plainly for the jury. At the time-of the accident, the defendant was digging a trench in Broadway below Liberty street, and he had there constructed a bridge over such trench. This was some ten days or two weeks before the plaintiff was injured, and the subway work was still progressing when the accident occurred

A loose beam was left lying upon this bridge; and it had occasionally been knocked out of position prior to the accident and replaced by laborers on the subway.

The accident was caused by the hind wheel of a coal cart running upon one of the ends of the beam and tilting the other end up. The end which was thus elevated struck the plaintiff on her head and injured her. It seems to us quite clear that a prima facie case was thus made out against this defendant. There was no presumption that a stranger had deposited the beam upon the bridge. On the contrary, there was a fair inference for the consideration of the jury that the defendant or his servants had placed it there to serve as a line of division between the foot path and the roadway. His employees too replaced it when it was knocked out of position, and indeed everything in the case tended to support the presumption that it was part of the defendant’s bridge. Such was probably the fact and the jury would have been quite justified in so finding. The beam should either have been removed altogether or securely nailed to the bridge, certainly when it was seen that accidents might occur from its being knocked about by passing vehicles. The case in our judgment should have been left to the jury.

ZSTor can the nonsuit be sustained upon the theory of the negligence of the driver of the coal cart. He had a right to proceed freely upon the public highway without being delayed, hindered or embarrassed by illegal or negligent obstructions. The defendant, if guilty of negligence with regard to the beam, and thus the primary factor, cannot escape because the driver might have withdrawn from a position where he had a right to be or deviated from his proper direction or otherwise treated the obstruction with greater circumspection.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bartlett, J., concurs.  