Opinion
May 24, 1912.
George F. Hickey [ M.P. O'Connor with him on the brief], for the appellant.
G.B. Hanavan [ Bayard H. Ames, John Montgomery and James L. Quackenbush with him on the brief], for the respondent.
The plaintiff, an infant of nearly five years of age at the time of the accident, was playing upon the sidewalk opposite his father's store in Pierce avenue, Long Island City, on the 29th day of September, 1909. A party of men, alleged to be in the employ of the defendant, were engaged in placing wire cables upon certain poles along that thoroughfare. In doing this the cables would be lifted up to the supporting arms upon the poles, the loops falling nearly to the sidewalk. These loops were taken up and the cables made taut by means of a team of horses hitched to the end of the cable some distance away. The plaintiff was standing with his back to one of these sagging cables, which was about eighteen inches above the sidewalk, when the team was suddenly started and the child was caught under the arms and carried suddenly up a distance of about two stories, and when the cable became straight it operated like a bowstring and threw him off, resulting in serious injuries. The case is so identical in its principles with Devine v. Brooklyn Heights R.R. Co. ( 1 App. Div. 237) that we feel called upon to reverse the judgment now before us on the authority of that case.
It is attempted to show here that there was no evidence to establish that the defendant was doing the work. It may be admitted that the evidence was not entirely satisfactory, but we are of the opinion that in the state of the pleadings, with the defendant's admissions, evidence that a wagon bringing tools and supplies to this work was marked with the initials or with the name of the defendant, and the other facts and circumstances surrounding the occurrence, was some evidence in support of the cause of action; was evidence which demanded the submission of the question to the jury, even though the court might owe the duty of setting aside a verdict based upon such evidence. This is a nonsuit and the plaintiff is entitled to all the legitimate inferences from the evidence, and we are persuaded that a prima facie case was presented by the evidence and one which justified a submission to the jury unless, upon the presentation of defendant's case, there was some conclusive fact to overcome the testimony tending to connect the defendant with the accident.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
JENKS, P.J., HIRSCHBERG, BURR and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.