Morris v. Strobel & Wilken Co.

ants and attached to their building, and that it fell in the public street, without any apparent reason for so doing, called upon the defendants to show that they were without fault. It is urged upon the part of the defendants, however, that the learned court erred in the rule in respect to negligence in that the case at bar was not one in which the maxim “Res ipsa loquitur,” was applicable, and that the rule has been established that this maxim does not apply except where contractual relations existed between the parties. It is undoubtedly true that expressions may be found in opinions to support the contention of the appellant, but an examination of the adjudications upon the subject show that it is not a correct statement of the law. A leading case upon this subject is that of Kearney v. Railroad Co., L. R 5 Q. B. 411; same case in the exchequer chamber, L. R. 6 Q. B. 759. The facts were that the plaintiff was passing on a highway under a railway bridge, when a brick fell, and injured him on the shoulder. A train had passed over the bridge shortly before the accident. The bridge had been built three years, and was an iron girder bridge, resting on iron piers on one side, and a perpendicular brick wall, with pilasters, on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on it. A motion was made for a nonsuit, on the ground that there was no evidence of negligence to leave to a jury. The court of queen’s bench, by a divided vote, held that this was a case to which the maxim, “Res ipsa loquitur,” was applicable; ox1, in other woi’ds, that there was prima facie evidence of negligence. The principle stated was that whenever it is a defendant’s duty to use reasonable care to keep a bridge or other structure or premises in a proper condition as it respects persons passing along the highway, and these are out of condition, and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was bound to use; and that the absence of that care may fairly be presumed from the fact that there was the defect from which the accident had arisen. This principle was unanimously-affirmed in the court of exchequer chamber. In Byrne v. Boadle, 2 Hurl. & C. 722, the facts were that an injuiy was caused by the falling of a barrel into a highway from the window of a shop. In discussing the question of the proprietor’s liability, Pollock, C. B., said: “ There are many accidents from which no pi'esumption of-negligence can arise, but this is not true in all cases. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out; and I think such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence. So, in building or repairing a house, if a person passing along the road is injured by something falling upon him, I think the accident would be prima facie evidence of negligence.”

In Mullen v. St. John, 57 N. Y. 567 , various other cases are cited in addition to these, illustrating the same rule. Therefore, when the plaintiff was passing along the public street, she was entitled to immunity from injury by the dropping of apendages to buildings erected along the same; and when she was injured by the

fall of such an appendage it became the duty of the owners of that appendage to sbow that they used reasonable care in its construction and maintenance, and that the accident happened without any fault or negligence upon their part. In the case at bar an attempt was made to show that this accident occurred by reason of a high wind which was prevailing at the time, and that it was, therefore, to be considered as an act of God, for which the defendants could not be held responsible. The evidence in' the case showed that at the time of the happening of the accident the wind was blowing afc the rate of about nineteen miles an hour, and that it increased, subsequently, to twenty-five miles an hour, and three or four hours later to thirty-one miles an hour. It further appears that s. wind of nineteen miles an hour is not an unprecedented one in this city, but one which frequently occurs, although the average rate of wind during the summer months is from eight to nine miles an hour, and during the winter months from eleven to twelve miles an hour. It appeared further that a wind from twenty-five miles an hour up is known as a high wind.' This evidence shows beyond question that there was no extraordinary stress of weather, and that the falling of the sign was not to be attributed to .any such cause. In the erection and maintenance of these appendages the defendants were bound to secure the. same so that they would not only be equal to the ordinary known vicissitudes of the weather, but would be able to withstand the force of gales which experience has shown to be liable to occur. The defendants in this action have wholly failed to meet these requirements. They have shown how this sign was atta'ched to ■ their building, and the manner in which it was secured; but we are left in utter ignorance as to whether it was constructed in a manner proper for the use to which it was put, as no evidence was offered upon this point, and .it is apparent from the fact that it fell in a moderate wind that it was insufficient for the use for which it was constructed. It is’also claimed upon the part-of the defendants that the damages were excessive. Without discussing at length this proposition, we do not see, upon an examination of the evidence, that we can interfere with the verdict of the jury upon this ground.

Judgment and order appealed from should be affirmed, with costs.

Barrett, J., concurs; Parker, J., dissents.