Louis Kane, an Infant, by Philip Kane, His Guardian ad Litem, Appellant, v. Berry B. Simons and Jacob Moersfelder, Doing Business under the Firm Name and Style of Simons and Moersfelder, Respondents

Louis Kane, an Infant, by Philip Kane, His Guardian ad Litem, Appellant, v. Berry B. Simons and Jacob Moersfelder, Doing Business under the Firm Name and Style of Simons and Moersfelder, Respondents. First Department, February 2, 1912. Negligence — liability of contractor for injury to boy from fall of . building material piled in street — evidence — contributory negligence — liability of sub-contractor. In an action for personal injuries brought by an infant against the defendants, who were under contract to furnish and set the iron beams in the construction of a building, it appeared that during the progress of the work the sidewalk became impassable, and that the plaintiff being obliged to. turn into a carriageway to pass around a pile of the iron beams, was injured by one of the beams which fell upon his foot. There was no evidence of negligence on the part of the boy, and there was nothing to account for the falling of the beam other than that it must have been insecurely piled. Held, that the dismissal of the complaint at the close of the plaintiff’s case was error; That the fact that the beams were to be used by a sub-contractor did not relieve the defendants from liability, since it was fairly to be inferred from the evidence that the injury was caused by the improper piling of the beams by them. Appeal by the plaintiff, Louis Kane, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term. John McG. Goodale, for the appellant. Benjamin Reass, for the respondents. [MAJORITY — Laughlin, J.:] Laughlin, J.: The defendants were under contract to furnish and set the iron beams in the construction of a building on the premises 22Y-231 East Ninety-eighth street, borough of Manhattan, New York. They furnished all of the iron beams pursuant to their contract, but sublet part of the work of setting them. During the progress of the work the sidewalk became impassable and building material was piled in the carriageway on the northerly side of the street. On the 4th day of March, 1906, the plaintiff, who was then ten years of age, was going easterly on the northerly side of this street and was obliged to turn into the carriageway to pass around a pile of about twenty-five large iron beams, eleven feet or more in length, and while he was walking alongside of the pile one of the beams fell upon his leg and injured it. This action was brought to recover the damages thus sustained. There was no evidence of negligence on the part of the boy, and there was nothing to account for the falling of the beam other than that it must have been insecurely piled. The plaintiff was nonsuited upon the ground that it was not shown that the defendants deposited the beams on the street, or were responsible for the manner in which they were piled. We are of opinion that the jury would have been warranted on the evidence in finding that the beams were negligently piled, and defendants were responsible therefor. Under their contract it was their duty to furnish the iron, and one of them testified that they did furnish all of the iron used in the construction of this building, and it was further shown that the pile of beams in question were subsequently used in the construction of the building. The fact that the beams were to be used by a sub-contractor does not relieve the defendants from liability, for it is fairly to be inferred from the evidence that the injury was caused by the improper piling of the beams, and not by any use of them by a sub-contractor after being delivered on the street under defendants’ contract. It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.