Flynt Bldg. & Const. Co. v. Brown

• Decision Date: 05 March 1895
• Citation: 67 F. 68
• Court: U.S. Court of Appeals — Second Circuit
• Parties: FLYNT BLDG. & CONST. CO. v. BROWN.

67 F. 68

FLYNT BLDG. & CONST. CO. v. BROWN.

United States Court of Appeals, Second Circuit.

March 5, 1895

Charles J. Patterson, for plaintiff.

Jesse Johnson, for defendant.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM.

In December, 1891, the Flynt Building & Construction Company the defendant in the circuit court, was engaged in altering a building upon Adams street, in Brooklyn, and for the convenience of the company and for the protection of the sidewalk had built across the paved walk a wooden runway over which material was carried into the building. The plaintiff tripped over this runway, about 5 o'clock in the afternoon of December 18, 1891, at a point under the elevated railway, where the light was very dim, and broke his arm, and thereafter brought this suit against the construction company to recover damages for its alleged negligence. The height of the runway above the sidewalk was a material and disputed question of fact. The plaintiff's testimony was to the effect that the structure consisted of two tiers of planks, each two inches thick, the tiers or layers being placed crosswise to each other, and one above the other; making the entire height of the wooden way four or four and one-half inches above the sidewalk from which its square sides rose perpendicularly. The defendant's testimony was to the effect that the runway was made of ceiling boards seven-eighths of an inch thick, laid in two similar layers, and that on each side where foot passengers approached the way the boards were beveled off with a hatchet. The jury rendered a verdict for the plaintiff. The defendant assigned two causes of error, each of which related to the admissibility of testimony.

An expert witness was asked by the plaintiff, 'What is the usual and ordinary way of constructing these runways resting upon the sidewalk? ' The question was asked for the purpose of proving that the customary way was to nail a triangular board, called a 'skewback,' upon each edge of the double layer of plans so that the top service of the skewback should slope towards the sidewalk, and present a gradually inclined surface to persons as they approach the runway, and prevent stumbling over a perpendicular edge. The defendant objected to this question, which the court admitted. It is true that the person who is charged with an act of negligence which has caused an injury cannot protect himself by showing that...