I concur in the result reached by Judge Ward in his opinion. I think the defendant chargeable with negligence in omitting, during the period of three years, to have' the structure examined and inspected by some competent architect or builder. In view of the nature or character of this particular structure, and the uses to which it was devoted, it was liable to become weakened by the weight of many people attending the races and by their demonstrations upon the structure whereby some portions of the supports may have been thrown out of proper position or weakened. It does not appear that any such inspection was ever made, although the character of the erection would seem to require it, and it would seem that, such a duty or obligation rested upon the defendant under the circumstances of this case.
In Francis v. Cockrell (L. R. [5 Q. B.] 193) the court said: “He employed competent and proper persons who had efficiently executed similar work on previous occasions. The circumstances that the defendant did not himself survey, or employ any one to survey, the stand, after it was erected, does not in itself establish the charge of negligence, for it does not appear that the defect was such as could have been discovered on inspection; and, even if it had been, it cannot be laid down as necessarily a want of care not to inspect, although it would in some dreumstances be evidence from which a jju/ry might properly find that due care had not been taken.”
It will be seen, upon examination, that, in that case, the grand stand had been completed only the day before the accident (pp. 186; 187), while in the present case the structure had been standing during a period of three years, and was used and occupied during those years by a large number of spectators attending the races under the defendant’s management, and yet there is no evidence that its continuous safety and security were ever tested by inspection.
The collapse óf a portion of the structure was sufficient prima facie evidence of negligence. (Mullen v. St. John, 57 N. Y. 567; Volkmar v. Manhattan Ry. Co., 134 id. 418; Cosulich et al. v. Standard Oil Co., 122 id. 127.)
The defendant was under obligation to maintain the structure in. a reasonably safe condition and fit for the purposes for which it was let, so far as the exercise of reasonable care and .skill could make it *334so. That it was not in such condition, in view of such purposes, was sufficiently evident from the happening of the accident and the proof given as to its structural defects. ' That the defendant exercised reasonable and proper' care, or any care, in ascertaining its condition for the safety and security of the spectators does not appear. Under the circumstances, the collapse of the structure must be held jprimafaoie evidence of negligence.
In such a case the burden of proof rests upon the defendant to rebut the presumption of negligence, arising from the facts, by affirmative evidence showing the adoption of reasonable precautions to avoid accident.
It should be remarked that the defendant had surrendered possession of the premises to the “lessee” for but a single day. It still owed a continuing duty to the public and was not relieved from its performance by letting the structure to another for so short'a period of time.
• Assuming that there is no implied undertaking on the part of the defendant that due- care and skill had been used by the persons whom it employed as independent contractors to erect the stand, and that it is not responsible for the negligent manner of its original construction, still, when it is considered that it was erected for the accommodation of large numbers of people, the defendant was bound to use extra precaution in testing and inspecting the structure, at. reasonable intervals of time, to protect them from loss of life and limb. The defendant owed' this duty to the public, and it could not absolve itself from its performance, nor escape its liability for the consequences resulting so disastrously to the people invited there, by letting it for hire for a temporary purpose.
In Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245) “there was no proof even that any of the timbers in the gallery were too small or weak and that they broke, or' that they were not properly joined together and supported, or that the gallery was in any respect negligently constructed.” The court held that negligence was not imputable .to defendant- for not foreseeing' that the contemplated use of the place for a pedestrian match would result in filling the gallery with a large and unusual number of people.
■ The decision in that case did- not involve the question'we consider here, to wit, the duty of the owner of a structure erected for public *335entertainments or amusements, to examine and inspect the same for the purpose of determining whether it’s safety and security for the accommodation of the public has been in any manner weakened or impaired by previous use.