Laven v. Moore
Laven v. Moore
Opinion of the Court
Opinion by
There is no rule of law nor any decision of this court that would sustain a jury in finding by imaginary inference that a brick which struck a plumber’s employee while working on the second story of a building in course of construction, was negligently thrown down, or knocked off, or tumbled over, or caused to fall, by two employees of a different contractor engaged in building scaffolding for brick layers on the fifth floor, no testimony having been offered to show that there were any bricks at or near the place where the scaffold builders were working. There is no doubt that if defendant or his employees caused the brick to fall which struck the plaintiff, inflicting the injuries complained of, an action in trespass would lie to recover damages. In order, however, to sustain this action the plaintiff must affirmatively show that the employees of defendant caused the brick to fall. He can do this by direct and positive testimony or by showing that defendant’s employees were in position to have caused the accident, and by the exclusion of all other causes, make out a prima facie case for the jury. The difficulty with this case is that plaintiff has not met either requirement. No direct evidence was produced to show
Judgment affirmed.
Reference
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- Negligence—Fall of brick—Construction of building—Evidence—Nonsuit. In an action to recover damages for personal injuries it appeared that the plaintiff, a plumber’s employee, was struck by a falling brick in a building in the course of erection, where he was at work on the second floor. Plaintiff claimed that the brick was precipitated from the fifth floor by an employee of the defendant, a bricklayer. There was no direct evidence to show how the brick came to fall, nor from whence it started. No one saw the brick near the defendant’s employee at any time; nor did anyone see the brick start from a point near him. The evidence did not show that there were any bricks at or near the place where the defendant’s employees were working; nor that there were no bricks on other floors or places from which the brick wKieh caused the injury might have fallen. Held, that a nonsuit was properly entered.