Helbing

Plaintiff recovered a judgment, for damages for personal injuries, against defendant, who in due time appealed from the judgment and the order of the court denying his motion for a new trial.

Appellant urges that the evidence did not show any negligence on the part of the defendant, but that on the contrary the evidence introduced proved that the work that the plaintiff claimed was responsible for his injuries was done by an independent contractor, to wit, by the McPhee Stone Company, and its servants, and not by the defendant or by any of his servants.

Plaintiff introduced evidence to the effect that while he was standing near the outer edge of the sidewalk on the south side of Bush street in front of a building then in process of erection a stone fell from the face of the wall, and striking him broke his leg. The accident occurred upon a Sunday succeeding a holiday,-and upon neither day was any work done upon the building. The stone that fell was a building stone about twenty inches long, ten inches wide and six inches thick. The evidence showed that the front wall, from which the stone fell, was at the time of the accident about nine feet in height. One witness testified that…