PRYOR, J. In connection with a building he was erecting, the defendant constructed an oven, into which, when it was about completed, he directed the plaintiff to enter for the purpose of cleaning out the sand. It collapsed, and crushed the plaintiff; and, for the injury so sustained, he prosecutes the action. With seeming confidence, the defendant imputes error to the court in refusing to dismiss the complaint. But upon what ground?
Surely not because the proof of his negligence was insufficient to carry the case to the jury. Not such was counsel’s opinion on the development of the evidence at the trial; for he then said: “It would be a question for the jury whether it was negligent construction or not, connecting the oven with the post that caused this oscillation.” And, indeed, defendant’s own testimony left no alternative but to submit the issue to the jury.
He disclosed the agency by which the oven collapsed, saying: “The cause of the break, 1o the best of my knowledge, was the post of the Elevated Railroad standing against the corner of the oven, and shaking it. All the stones shook onto it.” And, again: “Its giving way I could only attribute to two things.
One was the cement and plaster was no good, and the other was that hammering of the post.” The defendant had been working there before the oven was built; and he confessed that “during that time I felt the vibration,—the vibration of the Elevated Railroad,—but did not think there was enough to do any ha.rm. I subsequently found that it did;” and yet, with this knowledge of the vibration of the pillar, he so placed the oven that it was “hammered” to pieces.
Obvious and easy was the escape from the peril of which plaintiff was the victim.
When the oven was rebuilt, “it was rebuilt so that it did not touch the post, with a short interval between.” Thus, that the caving in of the oven was the effect of its ill construction the defendant concedes, and that its bad construction was the result of negligence is equally apparent on his testimony; for what man of ordinary prudence, aware of the vibration of the pillar under the incessant movement of the trains, would have so placed the oven as to subject it to the impact of the disintegrating agency?
That the consequence was within the range of reasonable apprehension, and might have been averted by the slightest effort, it is idle to gainsay.
Beyond all question, the evidence required the submission of the issue upon defendant’s negligence to the jury, and is sufficient to sustain their verdict. “If there is any doubt, however slight, either as to what facts of negligence are established by the evidence, or as to the conclusion in respect to the fact of negligence that may be drawn legitimately from the circumstances proved by the average of men of common sense, ordinary experience, and fair intentions, the case should not be taken from the jury.” Bills v. Railroad Co., 84 N. Y. 5, 10.
Nor, may we, upon our estimate of the probative force of the evidence, so encroach on the function of the jury as to nullify a verdict not manifestly destitute of support. Nelson v. Rail 22 road Co., 7 Misc. Rep. 656, 28 N. Y. Supp. 50. Equally untenable is the position that no proof was given of plaintiff’s freedom from contributory negligence. He was a common laborer, not a mason or bricklayer, and he had done no work on the oven.
Thus ignorant Of its insecurity, he was ordered into it by the defendant; and obedience to the command of his master absolved him from the imputation of negligence. Kranz v. Railway Co., 123 N. Y. 1, 5, 25 N. E. 206; Doyle v. Baird (Com. Pl. N. Y.) 6 N. Y. Supp. 517; Stuber v. McEntee (N. Y. App.) 36 N. E. 878; Connolly v. Poillon, 41 Barb. 366. The record discloses no error; and the judgment should stand. Judgment and order affirmed, with costs. BISCHOFF, J., concurs.
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