Opinion
October 11, 1943.
Present — Close, P.J., Carswell, Johnston, Taylor and Lewis, JJ.
Action to recover damages for personal injuries suffered by plaintiff as a consequence of being struck on the head by a falling brick. Judgment for the plaintiff against defendant Lajay Estates, Inc., and in favor of defendant A. La Sala Bros. Inc., as amended, and orders, insofar as appealed from, unanimously affirmed, with costs to plaintiff against defendant Lajay Estates, Inc., and costs to defendant A. La Sala Bros. Inc., against the plaintiff. There was no inconsistency in the verdict as a matter of law. The jury were free to find that the evidence did not warrant a holding identifying the party that set the brick in motion, that is, the bricklayer subcontractor or the carpenter subcontractor or even defendant owner and general contractor. The jury were free to conclude that they were unable to decide whether either of the former two was responsible in that particular. It could likewise conclude that the brick was set in motion by one of the employees of defendant owner and general contractor, or, passing that point, the jury were free to rest the finding of liability on the issue as to the presence or absence of a cat scaffold on the walls directly above where the plaintiff was working. The jury were free to conclude that regardless of which one of three possible agencies set the brick in motion, the negligence of the owner-general contractor in preventing the erection of the cat scaffold in court No. 4 was a concurring negligent cause, depriving plaintiff of the protection of such a scaffold, and bringing about his injury. The jury were also free to find that he was deprived of this protection before it became necessary to do any hoisting of material and before any hoisting apparatus had actually been put in place or used. Such a view of the facts rationalizes the jury's conclusion in exculpating the bricklayer subcontractor and fastening liability on the general contractor.