This is an appeal from a judgment entered upon a verdict of a jury awarding damages to plaintiff for personal injuries and also from an order denying a motion for a new trial.
The plaintiff was employed by P. J. Castin & Co., who were engaged in the construction of a building on Fulton street, in the city of Brooklyn, on the 15th of September, 1892.
The defendants were engaged in putting up the iron frame work on the building and had nearly or quite finished placing the iron beams for the first floor of the building.
*364. There was a.pile of bricks resting upon a platform of'planks on the iron beams, between thirteen to. fifteen feet long and ten to eleven feet wide and about four feet high.
This pile of brick was walled in three sides by. dry brick laid one upon the other, .and inside the wall bricks were thrown in loosely. The flooring had not been laid over the iron beams so that there were.open spaces between the beams and around the- pile of brick described. The -plaintiff was at work in the cellar, nearly under the platform which held the pile of brick,
The negligence charged in the complaint is that the defendants were engaged in moving the derrick, and that they moved the same negligently.and carelessly, and drove said derrick against a large pile of- bricks which were on- the first story of said building, and thereby knocked- a large quantity of said bricks into the- cellar of said building, where the plaintiff was lawfully engaged in working for other persons than defendants, and some of said bricks struck the plaintiff” and injured him.-
The fact was conceded that defendants’ men were moving the derrick, about the time of the accident, in the close vicinity of the brick" pile, but the other facts were sharply contested, and the evidence was very conflicting, "Witnesses of such accidents are usually under excitement, and are quite likely' to differ when relating'what they' saw. Circumstances impress'per'sons differently; so that those who see an accident .of that kind, though equally honest, differ as to' timó and order of' events, and' in other respects';; and' only a jury' can properly settle a question upon such conflicting claims-.
Defendant made a motion to dismiss the ’ complaint upon the ground that the negligence charged in -the complaint was not siibstantiated by the proof, and that the verdict was clearly against the-weight of evidence, ■ •
Assuming, for the sake of. argument,, that the weight of evidence was against the claim-' that the derrick was moved against the pile-of brick;. still, if the brick was made to fall ■ by the jar of -the movement of the derrick, or by the falling- of the guy ropes. upon the brick, it constituted no fatal variance in the proof with the allegation. The charge was negligence in moving the derrick, causing, the brick to fall. .....
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Considering all the circumstances, .the jury was authorized to find' *365upon the evidence that the derrick was moved against or upon the pile of brick and caused them to fall, but the court specifically charged the jury that only by defendants moving the derrick against the pile of brick could plaintiff recover a verdict; all question of jar was, therefore, eliminated from the case. Not only is this view consistent with the evidence, but it is consistent with reason.
The pile of brick rested upon a level platform,, and was surrounded and supported by a brick, wall. It had remained in the same position for some weeks; the floor upon which it was built extended outside the wall several inches — the width of two- planks:
There is no reason to suppose or believe that the brick would have fallen without interference, and there was no cause present when they fell except the derrick. Just before the brick fell, they were moving the derrick in the direction towards the brick, and there is evidence that they were moving it up to the time the brick did fall. Considering all the circumstances, we think it was a proper case for a jury, and that a finding that implies that the derrick was moved against the pile of brick and caused it to fall into the cellar, does not lack support in the evidence.
This view of the case was entertained by a previous General Term of this court, before which an appeal in that case was argued, involving .substantially the same questions and like evidence.
In addition to the testimony which was before the General Term upon the former appeal,* the plaintiff introduced a witness, one Anthony Rabbit, who testified that he was present at the time of the accident, where he could see what took place, and that he saw the derrick strike the brick pile and knock it down. He explained by saying that it was caused by. one of the men engaged in moving the derrick, allowing a guy rope to become slack while the derrick was being pried forward by a crowbar. That evidence alone, if believed, justifies a verdict in some sum for the plaintiff.
The exception taken by defendant to proof of the condition of the brick pile the day before the accident'has no merit, especially when it was shown that the pile had not been changed between the time stated and the accident.
Other exceptions were taken upon the trial, but no point was made upon the argument or in defendant’s brief, except to the *366■denial of the motion to dismiss the complaint and denial of motions for a new trial.
We find no error sufficient to warrant a reversal of the judgment, which is affirmed, with costs.
All concurred, except Babtlett, J., not sitting.
Judgment affirmed, with costs.
83 Hun, 196.—[Rep.