Barnowsky v. Helson

50 N.W. 989, 89 Mich. 523, 1891 Mich. LEXIS 640

• Court: Michigan Supreme Court
• Decided: December 30, 1891
• Status: Published

Opinions

Morse, J.

In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of an injury does not impute negligence on the part of any one, but, where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. For instance, if the wall of a building falls down, and injures a person, walking along the street or standing beside the building, the clear presumption is that the building was either negligently built, or that it was not kept in a reasonably safe condition after it was erected, since buildings properly constructed do not ordinarily fall of their own weight. In the present case it must be apparent, and within the knowledge of every one, that a roof of this kind could be raised safely, and without falling, if such raising were done with proper care and caution, and by one having the necessary skill and experience to manage the work.

There was no negligence shown on the part of plaintiffs intestate. He in no manner caused or contributed to the injury. The falling of this roof cannot be considered a mere accident for which Providence alone is responsible. The fact that some of the witnesses do not know what caused it to fall has no bearing upon the issue, except that they were ignorant of the cause of the disaster. One witness, Henry Yincent, testifies on direct examination:

“Q.' What was the cause of that roof going down?

“A. Because it was not properly braced.

“Q. If it had been properly braced, would it have fallen?

“A. I think not.

“Q. Now, why was it not properly braced? Whose business was it to do it?

“A. The carpenters’, I think; they done all the bracing there.

“Q. What do you mean by properly braced?

“A. It was not braced right; there was not braces enough.

“Q. Could it have been braced sufficiently to keep it in a perfect position?

“A. Yes, I think it could.

“Q. Don’t you know that it could?

“A. They did not throw the next one down, and I think they would not have thrown this one down if they had worked it the way they did the second one.”

On cross-examination he further says:

“Q. Now you say that all you noticed was four braces of 2x4?

“A. On each side.

“Q. And two ropes?

“A. Yes, sir.

“Q. You knew that it was clearly insufficient?

“A. I did not know anything about it. I don’t know whether it was enough or not. I never worked under a roof being raised in that shape.

“Q. So that you do not pretend to know whether or not it was sufficient or insufficient?

“A. I know' that if it had been braced more it would not have fallen.

“Q. I mean except by the result.

“A. That is all, — by the result.”

This is what any one would say at once upon reading this record, — that the remit shows that the roof was not properly braced; that the fact of this falling of the roof, taken in connection with the manner of raising it, shows presumptively that it fell because it was not properly braced; and there the mind 'would naturally rest, until some evidence was produced showing that it fell from some other cause or agency. This roof not properly supported would fall as a natural result of the laws of gravitation, but if properly braced there would be no reason for its falling from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore, without any other showing than that it suddenly gave way, slipped or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not suffi■ciently braced or stayed. The defendant made no showing to explain why it fell, and the case should have been •submitted upon the plaintiff’s proof.

“Negligence, like any other fact, may be inferred from ■the circumstances, and the case may be such that, though there be no positive proof that defendant has been guilty •of any neglect of duty, the inference of negligence would ■be irresistible.” Alpern v. Churchill, 53 Mich. 607, 613; Crosby v. Railway Co., 58 Id. 458; Bish. Non-Cont. Law, § 443.

Mr. Helson was responsible, if any one can be held liable, for the falling of this roof. While Mr. Kaiser took the job of raising the roof, the testimony shows that the timber bracing of the roof while it was being raised was to be done, and was done, by Helson through the direction of his foreman, Mr. Myers.

The judgment is reversed, and a new trial granted.

Champlin, C. J., McGrath and Long, JJ., concurred with Morse, J.