
    Frank O’Donnell, Respondent, v. Welz & Zerweck, Appellant.
    
      Negligence — measure of an owners liability for the safety of a building erected by an independent contractor—'difference in case of its being finished, or unfinished — when the questions as to negligence and contributory negligence are for the fury.,
    
    A brewing corporation employed independent contractors to build coal pockets and the supporting framework, the entire work being finished and apparently accepted in August, 1901. The corporation attached to the structure a hoisting apparatus, which occasioned an additional weight and strain thereon, of which the architect who1 planned the structure was not informed when h& designed it. "
    After the completion of the structure the corporation commenced to fill- the pockets with coal, but before they were filled one. of them gave way for no other apparent reason than that it was incapable of sustaining the weight of its capacity. The corporation had the damaged pocket shored up and then, proceeded with the work of filling the pockets. While this work was progressing it was observed that the whole structure was shaking. The vice-president of the corporation, together with its chief engineer, then placed a beam-under the structure to steady or support it. Two hours and a half later, the work of filling the pockets having gone on in the meanwhile, the entire structure collapsed, injuring a servant in the employ of the contractor who had been engaged in filling the coal pockets.
    
      Held, that the questions of the corporation’s negligence and of the possible contributory negligence of the injured servant were properly submitted to the jury;
    That the measure of the liability of the owner of a building erected by independent contractors for the safety and security of such building is different, where the building is. unfinished from what it would be if the building had been finished, accepted and in use.
    Appeal by the defendant, Welz & Zenveck/ffom a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March, 1903,, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 26th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      John B. Boyle [ John Vernon Bouvier, Jr., with him on the-. brief], for the appellant.
    
      Oswald N. Jacoby, for the respondent.
   Hirsohberq-, P. J.:

The defendant is a domestic corporation engaged in the brewing; business in the borough of Brooklyn, New. York city. The plaintiff, in September, 1901, was in the employ: of a- contractor who had engaged to fill certain coal pockets on the defendant’s premises,, and while he was at work under the pockets the entire structure fell,, inflicting the injuries of which, he complains. I do not find reversible error in any of the rulings of the trial court, and the verdict cannot be regarded as excessive. If there is, therefore, sufficient evidence to justify the submission to the jury of the question of the defendant’s negligence, the plaintiff is entitled to retain, his judgment.

The coal pockets in question had just. been, built at or shortly before the time of the accident, and were being filled with coal for the first time. There was some evidence that the ground upon which they were erected was soft and muddy. They rested upon iron beams which were.supported on one end by the wall of the defendant’s boiler room and on the other end by iron columns placed on a concrete foundation. Both the supporting framework and the coal pockets were constructed by independent contractors employed by the defendant,, the entire work being finished and apparently accepted in the month of August, 1901: The defend-

ant then commenced to fill the pockets with coal, but before they were filled one of them gave way for no reason which the evidence discloses unless that it was incapable of sustaining the weight of its capacity. The defendant employed a firm of house movers to shore up the fallen pocket, in which work the defendant’s chief engineer •assisted by putting some iron or steel plates under the platform connected with the shoring work. This chief engineer was in the court room at the time of the trial, but was not called to testify. After 'this accident had been repaired and while the final work of filling the pockets was in progress it was observed that the whole structure was shaking, and the defendant’s vice-president, Mr. Zerweck, together with the chief engineer, placed a beam, twelve by twelve inches, under the structure either to steady or support it. This was at'about.half-past two o’clock in the afternoon of the day of the plaintiff’s accident and about two hours and a half before that occurrence. During these two and a half hours the coaling work was permitted to proceed until the weight evidently became too great for the structure to carry and the whole thing came down, as a witness describes it, “ with one crash.” »

■ In claiming immunity for their client for the consequences of the accident, the learned counsel for the appellant rely upon the proposition established in Burke v. Ireland (166 N. Y. 305) that the owner of a building in process of erection is not responsible for the defective execution by a contractor of a competént plan of construe, tion. The case has no controlling application. The measure of liability is different in the case of an unfinished building from what it is in the case of one which has been completed, accepted and in use. This was pointed out by Mr. Justice Cullen in Murphy v. Altman (28 App. Div. 472, 474) in the following words: “The case of a building in the course of construction is very different from that of a completed structure, which is used and occupied for business purposes, which persons are invited to enter, and which such persons have a right to assume is reasonably safe.” Aside from this consideration, however, the evidence in this case tends to affirmatively establish negligence on the part of the defendant. It had received at least two warnings before the accident that there was some defect in either the plan or structure which rendered it dangerous to load the pockets to their capacity, and the jury was entitled to conclude that in such circumstances it was not reasonable care to proceed with the work and its attendant risks with no other safeguard than the temporary, and as the event proved inadequate, means adopted to secure the safety of the workmen. In addition to this there is some evidence that a hqisting apparatus which occasioned additional weight and strain was attached by the defendant to the structure, and that the architect by whom the structure was planned had not been informed when he designed it that it would be subjected to this added burden. On the whole case the question of the defendant’s negligence and the possible contributory negligence of the plaintiff were matters of fact'and not of law, and were submitted to the jury under instructions quite favorable to the appellant.

It follows that the judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.  