Strnad v. William Messer Co.

137 N.Y.S. 914

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 8, 1912
• Status: Published

Opinion

SEABURY, J.

This action was brought on behalf of an infant to recover damages for injuries alleged to have been sustained by her through the negligence of the defendant. While playing in the yard in the rear of the house where she lived, the- plaintiff was struck by a piece of wood, which fell from the adjoining building. The adjoining building, at the time, was in the course of construction. The defendant was a contractor engaged in doing plumbing work upon the adjoining building. There were upon that building servants of several other contractors, who were also engaged in work. The chief issue in the case was to determine whether or not the servants of this defendant were responsible for the accident.

The learned court below charged the jury that the fact that an object fell from the building was presumptive evidence, requiring the “one charged with such an act to present to the jury evidence denying the negligence by explaining the occurrence.” The charge also withdrew from the jury the issue of contributory negligence, and stated to the jury that the failure of the one charged with doing the negligent act to explain it was conclusive evidence of negligence. The fact that the plaintiff charged the plumbing contractor with responsibility did not relieve her of the obligation of offering proof to show that the plumbing contractor was liable. The mere charge of negligence has no probative force. The charge was not only incorrect, but prejudicial, since it permitted the plaintiff to recover a verdict based on her pleadings, rather than upon proof.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.