Peter Norman, Appellant, v. Michael J. Dowd and Richard T. Maslen, Respondents

Peter Norman, Appellant, v. Michael J. Dowd and Richard T. Maslen, Respondents. Negligence —failure to make a recess intended to receive an iron column large enough to receive it—injury to one putting in the column from brick falling from the wall as a consequence thereof. In. an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants, it appeared that the latter undertook to prepare recesses in a brick wall, which should be high enough to receive iron columns which the plaintiff and the iron workers associated with him had been employed to place in such recesses; that the defendants failed to make one of such recesses of a sufficient height, and that, in consequence thereof, the top of a column which the plaintiff and his companions, were endeavoring to place in position, struck the brick work at the top of the recess, causing several bricks to fall upon and injure the plaintiff. The plaintiff testified that he thought “everything was safe to go on;” that the space afforded by the recess looked wide enough and that this was the reason he went on. Held, that the questions of the defendants’ negligence and of the plaintiff’s freedom from contributory negligence were properly submitted to the jury; That the defendants having undertaken to prepare the recesses, it was their duty to ascertain the sufficiency of each recess by actual measurement, if necessary, before the iron workers were called upon to insert the columns therein; That it could not be held, as a matter of law, that the plaintiff was guilty of contributory negligence in assuming that the defendants had made the recess long . enough to receive the columns or in failing to notice that it was too short, it appearing that the defect of the recess in this respect was not plainly manifest. Appeal by the plaintiff, Peter Norman, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 3d day of April, 1903, setting aside a verdict in favor of the plaintiff on the ground that there was no evidence given showing the plaintiff’s freedom from contributory negligence. The action was brought to recover for injuries received by the plaintiff through the displacement of bricks in a vertical recess in a wall into which the plaintiff and others were engaged in placing an iron column, which, being longer than the recess, struck some loose brick in the wall above it, causing it to fall on the plaintiff. Conrad Saxe Keyes, for the appellant. Harrison F. Johnson and Frank V. Johnson, for the respondents. [MAJORITY — Per Curiam :] Per Curiam : We think that this ease was correctly tried and properly submitted to the jury and that the verdict of $250 in favor of the plaintiff should have been allowed to stand. There was evidence that the defendants undertook to prepare recesses in a brick wall, which should be high enough to receive the iron columns which the plaintiff, and the ironworkers associated with him were employed to place therein; that they failed to make one of these recesses of sufficient height; that in consequence of this insufficiency, the top of a column, which the plaintiff and his companions were endeavoring to put in place, struck the brickwork at the top of the recess, thus causing the fall of several bricks, and that these bricks in falling struck the plaintiff and produced the injuries of which lie complains. This proof made out a case of negligence against the defendants. They knew or ought to have known the exact height of the columns. Having undertaken to prepare the recesses, it was their duty to ascertain the ¡sufficiency of each recess by actual measurement, if necessary, before the ironworkers were called upon to insert the column therein. It was obvious, from the nature of the work, that a deficiency in the height of the recess, perhaps not readily discernible by the eye, might result in precisely such an accident as that which occurred in this case, when the ironworkers were engaged in trying to place in the recess one of these heavy columns.. We are also of opinion that the evidence on the question of contributory negligence was such as to make it proper to leave that question to the jury. The plaintiff testified that he thought “ everything was safe to goon,’-’ and the space afforded by the recess looked wide enough, and that this was the reason he went on: While engaged in the performance of duties that naturally absorbed his entire attention and required the exercise of all his energy, it cannot be held as matter of law that the plaintiff was guilty of contributory negligehce in assuming that the defendants had made the recess long enough to receive the column, or in failing to notice that it was too short, when the defect, in this respect was not' plainly manifest, The order setting aside the verdict should be réversed. Present—Goodrich, P. J., Bartlett, Woodward and Jenks, JJ. Order, of the Municipal Court setting aside verdict reversed, with costs, and judgment reinstated.