#### George St. T. Seabrook, plaintiff and respondent, *vs.*John Hecker, defendant and appellant.

1. If a man do an act lawful in itself, in so negligent a manner as to cause am injury to another, he must answer for the consequences.

*2.*Where the defendant erected attack of ovens upon his own premises in such . a careless, negligent and insecure manner that the structure fell , upon the house of an adjoining owner; *Meld*that he was liable for the damage caused thereby. .

3. And the jury having found a want of care and skill in the defendant upon evidence which, though conflicting, abundantly sustained their finding; *Meld*that their verdict was conclusive, and a judgment in favor of the plaintiff was affirmed. •

4. What constitutes negligence is a result drawn from the facts proved; and where the facts are in any degree doubtful, the only proper rule is to submit them to the jury with proper instructions as to the rule by which they are to he governed.

(Before Babbovb, Gabvin and Joras, JJ.)'

Heard December 6,1866;

decided May 6, 1867.

This is an appeal from a judgment, and an order denying a motion for a new trial. The action was brought to recover damages for losses and injuries sustained by reason of the falling of a stack of ovens upon the plaintiff’s house, on the night of the 10th of Hovember, 1862. It was claimed that the ovens were put up by the defendant in a careless, negligent, unskillful, unworkmanlike and insecure manner, whereby the structure fell and caused the damage.

It was not denied by the defendant that the ovens fell, and did the plaintiff an injury, but the amount thereof, and negligence, or want of skill in building, was denied. Upon the trial it appeared in evidence, on the part of the plaintiff, that on the day of the injury, and for some time previous thereto, the defendant was the owner of the lot Ho. 58 Rutgers street in the city of Hew York, upon which he was and had been erecting a stack of ovens, four stories high, not entirely completed. The ovens fell upon the house of the plaintiff, injuring and destroying his property, doing him great personal injury, and killing one of his children. There was evidence that the ovens, walls, *345arches and. ties were constructed under the eye and personal inspection of the defendant. It was in proof that the arches were not high enough ; that if, in addition to the ties which ran but one way, they had been put in both ways, the structure would not have fallen. And there was other evidence upon the question of negligence and want of skill in the construction of the building by the defendant which justified the court in denying the motion to dismiss the complaint.

Evidence was also given by and for the defendant, and the case was submitted to the jury under a charge from the court without exception thereto by either party, who found a verdict of $200 for the plaintiff, upon which judgment was entered.

*J. 8. Bosworth,*for the appellant.

*Wm. A. Goursen,*for the respondent.

By the Couet,

Garvin, J,

The defendant insists, in this case, that the verdict is against the law of the case as declared at the trial, and against the evidence. The rule is, if a man do an act lawful' in itself, in so negligent and unskillful a manner as to cause an injury to another, he must answer for the consequences. *(Radcliff’s ex’rs.*v. *Mayor, &c. of Brooklyn,*4 *N. Y. Rep.*199, *and cases there cited.)*And this was the rule adopted by the court, in the charge.

The defendant supervised the erection of the building, and owned the lot upon which it stood. It was clearly proved tha,t he was from time to time personally present, saw the work as it progressed, by days’ work, and put up and owned the building which fell and crushed the house of the plaintiff.

The only remaining question, aside from that of the amount of damage, was that of care and skill in the construction. It may be assumed that the evidence shows : 1. That if there had been ties running both ways the edifice would not have fallen, and that cross ties were generally used in such structures. 2. That the arches were not high enough to bear the *346weight from above. Evidence was also given that it fell from the arch, and cracks were seen in the wall before it fell. Much contradictory evidence was given by the defendant upon some of these questions Some evidence was introduced with a view of showing that cross ties were not necessary ; hut there was no proof showing that cross ties were put in, nor was there any proof contradicting the evidence that higher arches would have been stronger. In a structure of such weight and cumbersome proportions, it was a question for the jury to find whether the defendant exercised ordinary care and skill in its construction. There was evidence of negligence, some of which was contradicted. The defendant in his proof explained and qualified, and by cross-examination undertook to impeach • the credit of the plaintiff's witnesses ; who were sustained in some important particulars by evidence derived from witnesses of the defendant. All this was for the jury. They have found a want of care and skill in the defendant, upon evidence which abundantly sustains their finding. All deductions and inferences from the evidence were for them. Though men might differ as to the result, it was a question of fact for the jury, under proper instructions from the court. (3 *Kernan,*533.) What constitutes negligence is a result drawn from the facts proved ; and where the facts are in any degree doubtful, the only proper rule is to submit them to the jury with instructions as to the rule by which they are to be governed. (24 *How. Pr.*177. *Ernst*v. *The Hudson River R. R. Company,*32 *id. 61.)*

I am at a loss to see how the jury could, upon this evidence, have found otherwise than they did on the question of negligence. The evidence is very strong against the defendant. The credibility of the witnesses was a question for the jury, and their verdict is conclusive.

We think the verdict is sustained by the evidence. The judgment and order should be affirmed, with costs.