Jack v. McCabe

Hatch, J. (dissenting):

As I view this ease, it is established that the defendants erected the front walls of the building and built the scaffolding for that purpose. The boy was injured by a falling brick which came bounding down the scaffold into the street where he was at- play. The only point upon which there is serious disagreement relates to the responsibility of the defendants for the act. The contention is that it is not shown that, either through themselves or their agents, they caused the brick to fall. The proof upon this point is that the brick came from the front of the building. This was the place *382where the defendants worked when engaged in the construction. While there were other contractors and workmen engaged in constructing this building when the brick fell,, yet it does not appear that any of these persons were at work upon the front of the building, the point from which the brick came, nor would the perforan anee of their contracts bring them to this point, as the defendants’ ■contract was for the construction of these walls. It was conceded by the defendants upon the trial “ that these defendants were at work upon the building in question at the time the boy was injured — in front of the building 379 East Tenth street, in front of which this boy claims he was injured,” and the proof is that about an hour after the accident men were at work upon the scaffold building the wall. The concession as made dispensed with the necessity of the plaintiff’s showing that the men were.at work upon the scaffold and front wall at the time when the brick fell. The case, therefore, as made by the plaintiff, tended to show that the defendants at the time of the injury were at work upon this scaffold in the erection of the front wall over the point where this boy was injured. I think that these facts warranted the jury in drawing the inference that the defendants were responsible for the falling brick. Nothing which appears in the record, or which was said by the Court of Appeals in Wolf v. American Tract Society (164 N. Y. 30), is controlling of - this case. ' In that case it was shown that there were 19 independent contractors at work upon the building when the brick fell, and that they employed in all about 250 men. " At the time of the injury there were in the building and at work masons, carpenters, steamfitters, elevator men, electric light people and various other workmen throughout the building. There was no proof showing from what point in the building the brick came, or who of all the workmen set it in motion. To say that one rather than another caused the brick to fall rested upon conjecture only. This moved the court to say that there could be no ground for charging liability in solido upon all the contractors, or for the selection of one rather than another as the author of the wrong in the absence of any proof of the identity of such' person in connection with the act. The court in that case did not in the slightest degree depart from the well-settled and salutary rule which holds all pen-sons to a rigid degree of care when engaged in carrying on work *383over public thoroughfares through which people are liable at any moment to be or pass. The decision rested upon the ground that no person was identified as responsible for the act, and no proof was given which would authorize an inference that one was more responsible than another. Clearly, the present case is distinguishable. Here the defendants had the contract to erect the front wall, and they alone of all the contractors engaged upon the building worked at this point. And when the brick fell it bounded down the scaffold upon which they were at work. This case is more nearly like the case of Dohn v. Dawson (90 Hun, 271; affd., 157 N. Y. 686).

It may be that the facts in that case upon which to found liability were stronger than in the case at bar, but this fact does not require that we reach a different result when the proof is sufficiently strong to authorize an inference of responsibility ; and as I view this evidence, it was sufficiently strong to authorize the verdict which has been rendered.

For these reasons I am unable to concur in the views expressed in the prevailing opinion, and conclude that the judgment should be affirmed.

O’Brien, J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.