
    Delia E. May, as Administratrix, etc., of Henry F. May, Deceased, Respondent, v. The Berlin Iron Bridge Company, Appellant, Impleaded with John F. Johnson.
    
      Negligence—a workman killed by the fall of roof trusses placed out of plumb in a building — res ipsa loquitur.
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, the .proof tended to show that the roof trusses, which the defendant was engaged in-placing on a building, were out of plumb when erected, and remained so-for' several days, and that about half an hour before the accident the defendant’s superintendent, whose attention, had been called to the matter on several occasions, sent men to remedy the'trouble, but that they were unable to do so because the pulleys of the guy rope were block to block; and that while new tackle was being prepared to obviate the difficulty the trusses fell,, killing the intestate, who was in the employ of the person who had contracted to prepare the walls and piers for the support of the trusses.
    
      Hold, that this evidence, when taken in connection with the fact that it would have been impossible for the trusses to fall had they been plumb, was sufficient to warrant the court in submitting to the jury the question of the defendant’s negligence;
    That the maxim res ipsa loquitur did not apply to such a case.
    
      . Appeal by. the .defendant, .-The Berlin Iron Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of . the county .of Orange oil the 28th day of November, 1898, upon the verdict of a jury for $5,000, and also from so. much of an order entered- in said clerk’s office on the- 28th day of November,. 1898, as denied the defendant’s motion -for a new trial made upon the minutes. ■ ■
    
      Charles F. Brown, for the appellant.
    
      A. H. F. Seeger, for the respondent.
   Goodrich, P. J.:

On April 18, 1898, the plaintiff’s intestate was killed by the falling of roof trusses which were being erected at the State Armory in Newburgh. The State had contracted with one Bussman to make certain repairs and improvements on the armory, including a new roof. Bussman contracted with the defendant to furnish and erect trusses for the roof. He afterward became insolvent, and his sureties employed one Johnson to do certain parts of the work, not including the contract of the defendant. . Bart of Johnson’s work was to prepare the walls and piers for the support of the trusses, placing on the top of the piers flat granite cap stones which were bolted into the piers, and on which the trusses were to rest. Each truss was séventy-six feet long and twenty-three feet high from base to peak, weighed several tons and had a flat foot twenty by twenty-four inches in size at each end to rest on the piers. The trasses were in two sections designed to be bolted at the peak when placed in position. The tirst truss was put up about ten-feet .from the south end of the armory and bolted at the peak. It whs guyed _ by ropes to a tree to the south, and to a tower at the north part of the building, in order to hold it in position during, the Course of construction. There is evidence tending to show that such a method was usual and sufficient. The trusses were to be several feet apart, and as they, after the first, Were erected,.timbers three by eight inches thick, called “ purlins,” were used to tie the trusses together and support the construction. These were sufficiently long to extend from each truss to the second and third, so that each purlin tied together three trusses with bolts for which holes, had been left in the purlins and trusses. This method was pursued until six trusses had been raised. While the seventh was being raised the structure fell and the intestate, who was at work on the floor in the employ of Johnson, was killed. The plaintiff had a verdict, and from the judgment entered thereon the appeal comes to this court.

The defendant contends that, by the allegations of the complaint, its negligence is limited to the use of an insufficient, rope and to the failure to use a sufficient number of purlins in the process of erecting the several trusses. The complaint, however, after alleging negligence in these particulars, alleges, “ and the work of erecting the same was. carelessly and- negligently done; that in consequence thereof, and of the weak and insecure state and improper support of the same as aforesaid, the said trusses fell down into the said Armory building.” This allegation is broad enough to defeat the defendant’s attempt to limit the issues, and brings us to the question of the causes of the fall of the trusses.

The court charged .the jury as follows: “ The question for you to determine is whether or not the plaintiff in this case has satisfied you, by a preponderance of the credible evidence of the fact for which she contends, that they fell over because the superintendent in charge of this work so negligently conducted it that they were placed out of plumb, allowed to remain out of plumb, and the divergence from a straight upright line increased until the accident occurred.”

The defendant contends that the plaintiff has not established the cause of the fall of the trusses, and has not proved any negligence of the defendant in their erection. There was evidence tending to show that the first and other trusses, after they were erected, were out of plumb and leaning to the south, where the guy was fast to a tree. The witnesses estimated .the divergence to be from four to twelve inches. There is evidence tending to show that the attention of Dunning, the defendant’s superintendent, was called to the fact on several occasions, and that about a half hour before the accident he sent men to the north guy to pull the trusses into vertical position. The north guy had been pulled up so sharply that the pulleys were block to block, making them useless for the purpose of tightening the guy 'any more, and it was while new tackle was being prepared to obviate the difficulty that the structure fell. One of the plaintiff’s witnesses testified that the sixth truss; fell first towards the south and hit the fifth truss,' and that this knocked down all the trusses.

There isisome’testimony •to-eontradichthe. e.vidence>that' the trusses, : when erected and at all times thereafter, were more or less out of j plumb. Dunning says that he did not know the fact till about a half an hour before the accident, but the jury were justified on the evidence in finding that the trusses- were out of plumb for several , days, and that Dunning was negligent in failing .to observe such fact. j For some time after the first truss was put in place there was a ■ plumb line -on it, but this was removed niter the second -truss was ; erected. ...

We do not agree with the contention of the plaintiff that the maxim res ipsa loquitur applies to this issue. There áre two classes j of cases, to which it has been frequently applied, those relating to ' the liability of carriers of passengers and those where there has ! been interference with the safety of a public highway. Beyond these classes of cases, the courts have not been swift to apply the rule. In Cosulich v. Standard Oil Co. (122 N. Y. 118) the, court refused to apply it where an explosion had occurred on the defendant’s premises, which caused, petroleum to run into the river,whereby plaintiff’s vessel, at an adjacent wharf, was burned. The Court held that it was incumbent on the plaintiff to. establish negligence as an affirmative fact, and that the simple fact of an explosion did not point -to unskillfulness or .carelessness or defect in construction, or omission to keep in repair. But in the present case we think that evidence that t he trusses were out of plumb when erected, and continued to remain so, taken in connection with, the impossibility of their falling so long as they remained plumb, was sufficient to establish negligence prima facie. This being true, there was evidence requiring the court to submit the question of negligence to the jury, and the question having been fairly submitted to the jury, the verdict is conclusive.

For these reasons the judgment should be affirmed.

Bartlett, J., hot voting.

Judgment and order unanimously affirmed, with costs. .  