Lubelsky v. Silverman

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 defendant’s building operations. The doctrine of res ipsa loquitur applies to such a case (Wolf v. Am. Tract Society,. 25 App. Div. 98 , 49 N. Y. Supp. 236 , Id., 164 N. Y. 30 , 58 N. E. 31 , 51 L. R. A. 241 ; Mullen v. St. John, 57 N. Y. 567 , 15 Am. Rep. 530 ), 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. Railroad Co., 89 App. Div. 340 , 85 N. Y. Supp. 902 ; Mullins v. Siegel-Cooper Co., 95 App. Div. 234 , 88 N. Y. Supp. 737 . If otherwise, however, the evidence of the defendant’s apparent control could properly be 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 criticise 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.

Judgment affirmed, with costs.

SCOTT, P. J., concurs. MacLEAN, J., concurs in the result.