
    (87 Hun, 428.)
    COLELLI v. NEW JERSEY & P. CONCENTRATING WORKS.
    (Supreme Court, General Term, First Department.
    June 14, 1895.)
    Negligence—Evidence—Happening on Accident.
    While plaintiff was assisting in erecting the frame of a house for defendant, consisting of 23 bents, 50 feet high and 10 feet apart, and after 17 of the bents had been erected, they fell, and injured plaintiff. Held, that the fact of the fall of the bents was sufficient to justify an inference that the plan was defective, unless it was shown to have been negligently executed.
    Appeal from circuit court, New York county.
    Action by Nicola Colelli against the New Jersey & Pennsylvania Concentrating Works. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Theodore B. Steele, for appellant.
    John M. Gardiner, for respondent.
   FOLLETT, J.

This action was begun October 8,1892, to recover damages for a personal injury sustained by the plaintiff, an employd of the defendant, occasioned by the alleged negligence of the defendant The plaintiff is a stone mason, and April 7,1892, began work for the defendant, a New Jersey corporation, and continued in its employ until August 12, 1892, when he was injured. The case does not contain all of the evidence, and therefore no question of fact is before the court for its consideration. June 30, 1892, the defendant entered into a contract with Owen J. Conley by which the latter agreed to erect, pursuant to plans furnished by the defendant, a frame building, about 230 feet long, 90 feet wide, and upward of 50 feet high, upon its property at Ogden, N. J., and known as “Stockhouse No. 3.” The defendant furnished the material for the building and the machinery and implements for erecting it. When completed, it was to consist of 23 bents set 10 feet apart When the bents were ready to be raised, the contractor applied to the defendant for a gang of men to assist in raising the building. The plaintiff was at work under a foreman by the name of Smith, who was directed by the defendant’s officers to assist the contractor in the erection of the building. In obedience to Smith’s direction the plaintiff, with others, worked on the building. On August 12, 1892, while the seventeenth bent was being raised, all the bents fell to the ground, severely injuring the plaintiff, who was at, the time engaged on the building as an employé of the defendant. There was no wind or apparent external cause for the accident, but the building fell either because defectively designed or because the design was defectively executed. The defendant’s mechanical engineer planned the building, and it is not asserted that the contractor who undertook to perform the mechanical labor, but not to furnish any materials or machinery, neglected to erect or stay the bents in accordance with the plans furnished. There was some evidence that the bents fell because the contractor’s employés negligently left a rope unfastened; but the court instructed the jury that the negligence of the contractor or of his employés furnished no ground for the recovery of damages by the plaintiff, and that, to entitle him to recover, the jury must find that the accident was caused by a defective plan or design negligently adopted.

The mere fact that 17 bents, forming a frame 170 feet long, 90 feet wide, and 50 feet high, fell under the circumstances described, was evidence from which the jury was at liberty to infer that the plan was defective, unless it were shown to have been negligently executed. Builders testified that sufficient stays for holding the bents in position after they were erected were not prescribed by the plans, and in this respect it was urged that the defendant was negligent On the part of the defendant, witnesses testified that the plan was a safe one; but, in the face of the result, it is not a matter of surprise that the jury found that it was not. The plaintiff did not recover upon the theory that the contractor or his employés were negligent, but upon the ground that the defendant negligently designed an unsafe building, upon which it directed the plaintiff to labor. It is not urged, that the court erred in the reception or rejection of evidence, and the exceptions to the charge present no error, and are not of sufficient importance to require discussion. The liability of the defendant to its employés injured by this accident has already been affirmed in this court. Rook v. Concentrating Works, 76 Hun, 54, 27 N. Y. Supp, 623, and also by the supreme court of New Jersey in two cases.

The judgment and order should be affirmed, with costs.

PARKER, J., concurs. VAN BRUNT, P. J., concurs in result.  