Opinion
March, 1904.
Edwin A. Jones [ Harford T. Marshall with him on the brief], for the appellant.
Frank Harvey Field [ J. Edward Swanstrom and Conrad Saxe Keyes with him on the brief], for the respondent.
The defendant, a contractor, has been adjudged negligent in the reconstruction of a building. The interior structure collapsed, and the plaintiff's intestate, a workman, fell to his death. Under objection and exception, the plaintiff's witness Nelson testified that three or four weeks before the fatality, when he was walking through the hall on a tile floor placed upon the first tier of beams, the floor and also one or two beams went down under him; that he examined the place, found certain conditions existing, and that he spoke of the matter to the foreman of the mason sub-contractors. At the close of his testimony a motion was made to strike out the evidence of this accident on the ground that it appeared that the circumstances were not in any way similar to the accident complained of. The motion was denied under exception.
I think that the rulings upon this testimony require a reversal of the judgment. Three or four weeks intervened the prior accident and the one in question. During that period the work would naturally change the character of the structure even from day to day. If it did not in this case, then it was the duty of the plaintiff to show that it did not. The mere fact that the work was progressive does not warrant the conclusion that the structure, at the end of four weeks, was more dangerous, for the work was only destructive towards reconstruction. The learned counsel for the respondent argues that evidence of similar accidents occurring upon the premises is proper for the purpose of showing that the defendant had notice of the danger, citing Dougan v. Champlain Transportation Co. ( 56 N.Y. 1); Cleveland v. New Jersey Steamboat Co. (68 id. 306); and McGovern v. Central Vermont R.R. Co. (123 id. 280). And we are also cited to Bailey v. R., W. O.R.R. Co. (139 id. 302), where the court held that the plaintiff could prove that other brakes on the car were defective, as bearing on the question of inspection of the particular defective brake of which complaint was made. None of these decisions is in point. The vice in the ruling consists in admitting evidence of a prior accident without attendant proof that the physical conditions were materially the same. ( Dye v. D., L. W.R.R. Co., 130 N.Y. 671; Brady v. M.R. Co., 127 id. 46; Morrow v. Westchester Electric Railway Co., 54 App. Div. 592; affd., 172 N.Y. 638.)
The judgment and order should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.