Lubelsky v. Silverman

49 Misc. 133, 96 N.Y.S. 1056

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Bischoff, J.

The proof amply supported the finding of the jury that the plaintiff was injured, through the fall upon him of a portion of a shed over the sidewalk, erected in the course of the defendants’ building operations. The doctrine res ipsa, loquitur applies to such a case (Wolf v. American Tract Society, 25 App. Div. 98, 164 N. Y. 30; Mullen v. St. John, 57 id. 567), and the evidence for the defendants did-not necessarily rebut the presumption of negligence.

Control of the sidewalk having been given, so far, to the defendants for their temporary use, the duty of maintaining it in a reasonably safe condition remained upon them, and this duty they could not delegate to an independent contractor to escape liability for a negligent injury to a person using the highway. Schiverea v. Brooklyn Heights R. R. Co., 89 App. Div. 340; Mullins v. Siegel-Cooper Co., 95 id. 234. If otherwise, however, the evidence of the defendants’ apparent control could properly he accepted by the jury over the interested testimony of one of the defendants, which afforded the sole evidence that the construction of this shed was undertaken by an independent contractor.

The case was submitted to the jury under instructions which counsel for the defendants found no occasion to criticize at the trial; and, in view of the nature of the injuries, taken with the period during which the consequential suffering has endured, we cannot say that an award of $300, over the expense incurred for medical services, was excessive.

Scott, J., concurs; MacLean, J., concurs in result.

Judgment affirmed, with costs.