Wurthlee v. Concrete Steel & Tile Construction Co.

107 N.Y.S. 101

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 29, 1907
• Status: Published

Opinion

PER CURIAM.

The plaintiff was engaged, with others of the defendant’s employés, in removing certain materials from a building on which the defendant had a contract. While in the act of taking bolts from a “barrow hoist,” a piece of wood fell down the shaft, struck the plaintiff on the head, and inflicted injuries to recover damages for which this action was brought. The defendant appeals from a judgment rendered in the plaintiff’s favor.

The happening of the accident was clearly established, and it was shown that the piece of wood which struck the plaintiff belonged to the defendant. It was not proven, however, that the wood was set in motion by any of the defendant’s employés, or that they were in any. way responsible for its fall. Furthermore, the plaintiff and his witnesses testified that the employés of several other contractors were at work on the upper floors of the building at the time. There is absolutely no evidence which tends to connect the defendant with the happening of the accident, or which suggests, even remotely, any responsibility on its part in connection therewith. The record discloses merely the proof •of an accident, and there is no attempt to show who was responsible for it. Certainly it cannot be said upon the.evidence adduced that any negligence can be attributed to the defendant. The judgment must therefore be reversed, and a new trial ordered.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.