Barnowski v. Helson

Decision Date30 December 1891
Citation50 N.W. 989,89 Mich. 523
CourtMichigan Supreme Court

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Action by August Barnowski, administrator, against Richard Helson for the death of William Barnowski, an employe. Defendant had judgment by direction of the court, and plaintiff assigns error. Reversed.

George X. M. Collier, for appellant.

James H. Pound, for appellee.


In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of an injury does not impute negligence on the part of any one, but, where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. For instance, if the wall of a building falls down, and injures a person walking along the street or standing beside the building, the clear presumption is that the building was either negligently built, or that it was not kept in a reasonably safe condition after it was erected, since buildings properly constructed do not ordinarily fall of their own weight. In the present case it must be apparent and within the knowledge of every one, that a roof of this kind could be raised safely, and without falling, if such raising was done with proper care and caution and by one having the necessary skill and experience to manage the work. there was no negligence shown on the part of plaintiff's intestate. He in no manner caused or contributed to the injury. The falling of this roof cannot be considered a mere accident for which Providence alone is responsible. The fact that some of the witnesses do not know what caused it to fall has no bearing upon the issue, except that they were ignorant of the cause of the disaster. One witness, J. W. Vincent, testifies on direct examination: "Question. What was the cause of that roof going down? Answer. Because it was not properly braced. Q. If it had been properly braced, would it have fallen? A. I think not. Q. Now, why was it not properly braced? Whose business was it to do it? A. The carpenters', I think; they done all the bracing there. Q. What do you mean by properly braced? A. It was not braced right; there was not braces enough. Q. Could it have been braced sufficiently to keep it in a perfect position? A. Yes, I think it could. Q. Don't you know that it could? A. They did not throw the next one down, and I think they would not have thrown this one down if they had worked in the way they did the second one." On cross examination he further says: "Question. Now you say that all you noticed was four braces of 2X4? Answer. On each side. Q. And two ropes? A. Yes, sir. Q. You knew that it was clearly insufficient? A. I did not know anything about it. I don't know whether it was enough or not. I never worked under a roof being raised in that shape. Q. So that you do not pretend to know whether or not it was sufficient or insufficient? A. I know that if it had been braced more it would not have fallen. Q. I mean except by the result. A. That is all,-by the result." This is what any one would say at once upon reading this record,-that the result shows that the roof was not properly braced; that the fact of this falling of the roof, taken in connection with the manner of raising it, shows presumptively that it fell because it was not properly braced; and there the mind would naturally rest, until some evidence was produced showing that it fell from some other cause or agency. This roof not properly supported would fall as a natural result of the laws of gravitation, but if properly braced there would be no reason for its falling from that cause, and it would not fall from any other cause without the interposition of the elements or some human agency. Therefore, without any other showing than that it suddenly gave way, slipped or tipped to one side, and fell, the presumption is almost conclusive that it fell because it was not sufficiently braced or stayed. The defendant made no showing to explain why it fell, and the case should have been submitted upon the plaintiff's proof. "Negligence, like any other fact, may be inferred from the circumstances, and the case may be such that, though there be no positive proof that the defendant has been guilty of any neglect of duty, the inference of negligence would be irresistible." Alpern v. Churchill, 53 Mich. 607, 613, 19 N.W. 549; Crosby v. Railway Co., 58 Mich. 458, 25 N.W. 463; Bish. Non-Cont. Law, par. 443, p. 196. Mr. Helson was responsible, if any one can be held liable, for the falling of this roof. While Mr. Kaiser took the job of raising the roof, the testimony shows that the timber bracing of the roof while it was being raised was to be done, and was done, by Helson through the direction of his foreman, Mr. Myers. The judgment is reversed, and a new trial granted.

CHAMPLIN, C.J., and MCGRATH and LONG, JJ., concurred with MORSE, J.

GRANT J., (dissenting.)

H. P Baldwin & Co., of Detroit, owned two adjoining buildings, covered by flat roofs, which did not conform to each other. They adopted plans for a change, which made it necessary to lower the rear part of one roof, and to raise the front. A similar change was also made in the other building. They let two contracts,-one for the mason work; the other for the carpenter work. One Chapaton took the former, and the defendant the latter. Chapaton's contract required him to remove the center brick wall, and to raise the outside walls to correspond to the roofs when placed in their new positions. The back part of the roof which fell and killed plaintiff's intestate had been lowered to its proper position, and 30 to 40 feet of the wall finished underneath it. As fast as the roof was raised, the wall was erected to support it. At the time of the accident the front was being raised by means of jack-screws, placed upon boxes made for that purpose. For some reason the roof...

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  • Mitcham v. City of Detroit
    • United States
    • Michigan Supreme Court
    • January 12, 1959 it were; and thus we find that in some of our cases we speak boldly of a 'presumption of negligence' (see Barnowski v. Helson, 89 Mich. 523 at page 525, 50 N.W. 989, 15 L.R.A. 33, where we said 'the fact of such happening [the falling of a roof] raises a presumption of negligence in some......
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    ... ... as well by reasonable inference from other facts as by more ... direct means of proof. ( Barnowaski v. Helson, ... (Mich.) 50 N.W. 989; Blanton v. Bole, 18 S.W ... 1149.) The correct rule as applicable to the case at bar we ... believe to be laid down ... ...
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    ...143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445; McCray v. Galveston, H. & S. A. Ry. Co., 89 Tex. 168, 34 S.W. 95; Barnowski v. Helson, 89 Mich. 523, 50 N.W. 989, 15 L.R.A. 33. In Southwestern Telegraph & Telephone Co. v. Sheppard, Tex.Civ.App., 189 S.W. 799, 800, writ refused, where recovery......
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