Joyce v. Black , 226 Pa. 408 ( 1910 )

Opinion by

Mr. Justice Brown,

On the evening of June 8, 1906, the appellant was sitting on a chair on the pavement in front of a building No. 602 Liberty avenue, Pittsburg. While sitting close to this building and near the adjoining one — No. 600 — an ornamental bracket from that building fell and struck him, and this suit is for the recovery of damages for the injuries sustained, due, as is alleged, to the failure of the appellee to ’have the bracket prop.erly and safely fastened to the building. The learned trial judge properly refused to sustain the contention that the fall of the bracket was in itself evidence of negligence.

There was no negligence in having the bracket for ornamental use on the front of the house, and its mere fall raised no presumption that it would not have fallen except for the negligence of the owner of the property in not having it safely attached to the building. The rule res ipsa loquitur is not in the case, and affirmative proof by the appellant of the appellee’s negligence was essential to a recovery. Such proof might have been submitted, but by the exclusion of the offers which are the subjects of the third, fifth, sixth, seventh, eighth and ninth assignments of error the appellant was not permitted to lay a foundation for the support of his charge of negligence. John P. Brennen, assistant superintendent of the bureau of building inspection for the city of Pittsburg, examined the front of the building about five months after the bracket fell. He testified that he had passed the building almost daily from the time the accident occurred up to the day he made the examination and there was no change whatever at the point from which the bracket fell. Pie was then asked whether when he examined the building he found there had been anything to hold up the bracket and fasten it to the building, but was not permitted to answer. D. F. Crawford, a contractor and builder, who also examined the building about the same time as Brennen, testified that he could see the way in which the bracket had been attached, but when asked to tell how, his answer was excluded. F. J. Osterling, an architect, and third witness, who had examined the building was asked whether, from his examination of it, he could say how the bracket had been held, but he, too, was not permitted to answer. .The reason given for not permitting these three witnesses to answer was that their examination of the building had been made five months after the accident, but the court evidently overlooked the testimony of Brennen that he had passed the property almost daily from June until December and that there had been no change in the front of it at the point where the bracket had been attached. In addition to this, though called after the foregoing three witnesses, Samuel W. Black, the appellee’s agent in charge of the building, stated that from' June to December there had been no change in the front of the building at the point stated. Under this state of facts Brennen, Crawford and Osterling were qualified to tell the jury how the bracket had been attached, and this would have been the first particular in the proofs required from the plaintiff to establish his allegation of negligence.

After having shown how the bracket had been attached, it would have been competent for the appellant, if able to do so, to submit proof that the way in which it had been attached and maintained was improper and unsafe, rendering it liable to fall at any time, and that the owner of the building so knew, or ought to have so known. He might not have been able to come up to this measure of proof, but it was his right to have the opportunity to do so, if he could, and that right was taken away from him when he was not allowed to take the first step towards it. The third, fifth, sixth, seventh, eighth and ninth assignments of error are sustained and the judgment is. reversed with a procedendo.