Hesselgrave v. Butler Bros. Const. Co.

101 N.Y.S. 103

Opinion

PER CURIAM.

The learned trial justice charged the jury that if defendants by any act on their part “led to the falling of the brick,” or if defendants “committed or omitted any act whereby this brick was caused to fall/’ it would be for the jury to say what injuries the plaintiff sustained, and that, “even if the brick fell, that fact alone, unsupported by any other evidence, is not sufficient to warrant defendants in being charged with the cause of the falling.” There was no evidence as to the cause of the falling of the brick, or as to the person by whom it was caused to fall, and the fact that the brick fell stood alone, and was unsupported by any other evidence, and accordingly the verdict, if the jury followed the instructions of the court, must necessarily have been for the defendants; but the verdict was for plaintiff, and hence contrary to the law of the case, as well as contrary to the evidence.

The order will be reversed, the judgment will be vacated, and the verdict set aside, and a new trial will be ordered, with costs to appellant to abide the event.