Heady v. Burke

In view of the rule that at the close of the plaintiff’s case he is_ entitled to all the inferences in his favor legitimately deducible from the proof (Baylies, Trial Prac. [2d Ed.] 309), we think that on the question in issue—defendant’s negligence, and plaintiff’s freedom from contributory negligence—the plaintiff proved a prima facie case, and that the complaint should not have been dismissed. The opinion of the court below seems to correctly note the rule applicable to scaffolds since the enactment of the labor law (Laws 1897, c. 415), which extends the common-law liability. Stewart v. Ferguson, 34 App. Div. 510 , 54 N. Y. Supp. 615 ; Id., 52 App. Div. 317 , 65 N. Y. Supp. 149 , affirmed 164 N. Y. 553 , 58 N. E. 662 ; Rettig v. Transportation Co., 6 Misc. Rep. 328 , 26 N. Y. Supp. 896 , affirmed 144 N. Y. 715 , 39 N. E. 859 . The order appealed from will therefore be affirmed, with costs. As the defendant has, in the event of affirmance of the order of the general term, stipulated for judgment absolute, the cause is remitted to the court below for assessment of the plaintiff's damages. Order ( 71 N. Y. Supp. 1027 ) affirmed, with costs. All concur.