Laven v. Moore ( 1905 )

Opinion by

Mb. Justice Elkin,

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 how the brick came to fall, nor from whence it started. Neither was there sufficient testimony from which a jury might draw an inference that defendant’s employees were the only persons in position to have caused the accident. The testimony did not exclude all other causes. It did not show that there were any bricks at or near the place where scaffold builders were working. It did not show that there were no bricks on other floors or places from which this particular brick might have fallen. The testimony does not show that anyone saw the brick near the scaffold builders at any time, nor did anyone see the brick start from that point. It is probable that the brick may have fallen from some other floor, and the jury cannot be left to guess where the brick came from and who caused it to fall. These facts clearly distinguish this case from Booth v. Dorsey, 208 Pa. 276, relied on by appellant. The plaintiff failed to show by direct testimony or by facts from which the inference might be drawn, any negligent act of the defendant’s employees, and, therefore, cannot recover in this action. The nonsuit was properly granted.

Judgment affirmed.