Nora Cross, an Infant, by Ann Cross, her Guardian ad Litem, Appellant, v. Charles H. Koster, Respondent

Nora Cross, an Infant, by Ann Cross, her Guardian ad Litem, Appellant, v. Charles H. Koster, Respondent. .Negligence-—decorations becoming loose and dislodging terra cotta which falls from a building upon one passing by—the doctrine of res ipsa loquitur does not. ■apply. Proof that a decorator put flags and bunting upon the front of a building, and that two days after he had completed his work and had left the building a terra cotta ring forming part of a gargoyle fell from the front of the building and injured a person passing in the street — it appearing that in the interval .a builder had put ropes and fastenings over portions of the building covered by the decorations, and that at the time of the accident certain of the decorations were “ flopping all over the building ” in a strong breeze—does not establish negligence on the part of the decorator. The.doctrine of res ipsa loquitur does not apply to such a case. Appeal by the plaintiff, Kora Cross, an infant, by Ann Cross, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kew York on the 8th day of April, 1896, upon the dismissal of the complaint directed by the court after atrial before the court and a jury. This action is brought to recover damages for personal injuries sustained by plaintiff through the falling of a 2>iece of terra cotta ornamentation from the front of a building in West Fourteenth street, caused, as alleged, by the faulty, careless and negligent manner in which the defendant had decorated the front of said building with flags and bunting. On June 3, 1895, the 2daintiff was walking through Fourteenth street, and on passing said building something fell from above and struck her on the head. This, it was shown, was a piece of terra cotta ring, of about a foot in diameter, placed in a lion’s mouth and forming part of a gargoyle on the seventh or eighth story of the building. One Ballington Booth was the owner of the building involved. A contractor named Jeremiah C. Lyons erected the building and did all the work in its construction, and was in possession and control of the building for the purposes a builder requires, it not being fully completed at the time of the accident. Booth and Lyons were originally made parties defendant, but the action was subsequently discontinued as to both of them, and continued against the defendant Roster alone. As to him, it appears that prior to the accident he was employed by Booth to decorate the front of the building 'with flags and bunting, which he did and com-2Dleted his work, and left the premises on June first, which was Saturday, two days before the accident. Between Saturday, June first, and the hour on June third when the accident happened, persons in the employ of the contractor Lyons 2)laced ropes and fastenings over portions of the building covered by the decorations; but whether such ropes and fastenings interfered with the decorations or not is not made clearly to appear. It was not shown that any o£ the ropes or fastenings were attached to the ring which subsequently fell, and there was evidence which tended to show that certain of the decorations were “ flopping all over the building; ” that the bottoms of the flags and bunting were fastened, some loose and flapping, and that one of these large decorations flew up with the breeze and when it came down brought with it this terra Cotta ring, which had been cemented into the lion’s mouth with Portland cement. . Upon these facts the court dismissed the complaint, and it is from the disposition thus made that the appeal is taken. Samuel Campbell, for the appellant Theroji I. Carman, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: There is no dispute as to what caused the injury, and the single question presented is as to whether the defendant is the one responsible. If, as against him, we draw the inference most favorable to the plaintiff, that the. ring was detached by the bunting or 'flags which, caught by the wind, were, as expressed by some of the witnesses, “ flopping all over the building ”■ and, catching in the ring, brought it down and thus injured the plaintiff, there is still lacking in the proof a necessary link. The. defendant had no control of the building, and had no right to enter it except for the purpose of fulfilling the contract of decorating. When the accident happened he. had done this work and gone away, and it is not shown that he was on the premises or in the neighborhood for two full days prior thereto. His entering the premises after he had completed his Work, unless with the permission of the owner or contractor, - would have been a technical trespass; and this is adverted to merely for the purpose of showing that for what happened subsequent to his completing his contract with the bunting, he could not be held responsible. The evidence was directed to showing the condition of the bunting on the day of the accident •—- not the manner in which it was put up or how it was fastened or arranged at the time when the defendant completed- it; and as we have the evidence that men in the émploy of the contractor, by -adjusting ropes and fastenings, may have interfered to some extent with the decorations, it cannot be assumed that- the condition of the bunting and flags was the same on the day when the accident occurred as it was when the defendant completed his work. We have not only the evidence of interference by the contractor’s men, but also the further evidence that on the day of the accident there was a strong breeze blowing, which, to some extent, may have accounted for the “ flopping ” of the bunting and flags. Upon these facts, the rule which the appellant has invoked of res ■ipsa loquitur is not applicable. Wherever that doctrine has been applied, and, from the mere happening of the accident to a passer upon the public street, a prima facie case held to have heen made out, it will be noticed on reading the cases that it was always against one who was in control or possession of the premises, building or property involved. How far this rule might be applicable as against the owner or contractor, we should not intimate or determine in view of the voluntary action of the appellant in discontinuing as against them, it being sufficient for this appeal to determine whether a prima facie case of negligence as against this defendant was made out and which justified its submission to the jury. Considering the relation of the defendant to the building at the time of the accident, and for the other reasons stated, we think the disposition made by the learned trial judge was right. The judgment should, therefore, be affirmed, with costs. Rumsey, Williams, Ingraham and Parker,-JJ., concurred. Judgment affirmed, with costs.