
    Catherine Kaiser, Appellant, v. Hiram L. Washburn, Respondent.
    
      Negligence — injury caused by the fall of a chimney upon a woman in an adjoining yard—duty of reasonable care imposed on the owner—pi'emous knowledge of the defective chimney is not contributory negligence, as matter of law..
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff the evidence tended to show that a yard next to the house in which the plaintiff resided adjoined a house owned by the defendant, and that while the plaintiff was washing in the yard she was injured by a shower of bricks which suddenly fell from a chimney on the defendant’s house; that for a year prior to the accident the chimney had been in a dangerous condition; that the defendant did not occupy the house, and that about three months before the accident he rented the portion in which the defective chimney was located to a tenant.
    
      Held, that it was error to nonsuit the plaintiff;
    That it was a question for the jury whether the defendant, in the exercise of reasonable care, should have discovered and remedied the defect in the chimney;
    That proof of previous knowledge on the part of the plaintiff of the defective condition of the chimney did not establish, as matter of law, that she was guilty of contributory negligence.
    Appeal by the plaintiff, Catherine Kaiser, from a judgment of the Supreme Court in favor of the defendant, entered in the "office of the clerk of the county of Albany on the 4th day of October, 1899, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term, and also from an order entered in said clerk’s office on the 26th day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William, E. Woollard and S. T. Hull, for the appellant.
    
      Hiram L. Washburn and Randall J. Le Boeuf, for the respondent.
   Merwin, J.:

This action was brought to recover damages sustained by the plaintiff by the falling upon her of bricks from a chimney on premises owned by the defendant. The house in which plaintiff lived was next westerly of the defendant’s house, and between the two houses was a lot or yard sixteen feet in width; This yard was used by the plaintiff, and from the evidence we must assume that she had a right to do so. She took in washing, and in doing this work was accustomed to place her tubs in the southerly part of this yard. The defendant’s house consists of two stories, with gable end to the street, and there were two chimneys — one at the front or northerly end and one at the southerly end. On the 12th of June, 1899, while the plaintiff was engaged in the yard at her tubs in washing, a shower of bricks ■ suddenly came down from the defendant’s rear chimney and the plaintiff was hit and injured.

At the close of the evidence on the part of the plaintiff, a non-suit was granted. The questions here are whether any basis for a liability against defendant is shown, and, if so, then whether the plaintiff was entitled to have the question of contributory negligence submitted to the jury.

There was evidence tending to show that for a year prior to the accident the chimney appeared to be in a dangerous condition ; that some of the mortar and bricks were out and the chimney was cracked and leaning some toward the west. It has been' held that when a building adjoining a street falls into the street, in the absence of explanatory circumstances, negligence will be presumed, and the burden is placed upon the owner of showing the use of ordinary care. (Mullen v. St. John, 57 N. Y. 567 ; Volkmar v. M. R. Co., 134 id. 418, 420; Vincett v. Cook, 4 Hun, 318.). The defendant here did not reside in his house.' A portion was vacant, and a portion, apparently that part in which was the defective chimney, had been, rented by kim to a tenant on the first of March previous. In Timlin v. S. O. Co. (126 N. Y. 514) the rule is laid down that “ where» the owner of premises knows, or, by the exercise of reasonable care, can ascertain that they have upon them a nuisance, dangerous to the public or an adjoining owner, it is his duty to abate it before leasing the property; if he leases without doing this, he it liable to respond in damages to anyone injured in consequence of the nuisance; and this is so, although he did not create the nuisance.”

It seems to me to be quite clear that it should not be said, as mat-, ter of law, that the defendant was not negligent. It was for the jury to say whether the defendant, in the exercise of reasonable care, should have discovered and remedied the defect. If so, there was a basis for liability against him. (Gibson v. Denton, 4 App. Div. 198.) Clearly the defect existed at the time he rented the property on March 1, 18,99.

Was a case made for the submission to the jury of the question of contributory negligence ?

One of the witnesses for the plaintiff, the last one called, testified on his cross-examination that about a year before "the accident he was in the plaintiff’s yard and said to her, “ you had better look out or you will get hurt,” and she replied, I believe you are right, too.” It is inferable that the chimney was the subject of the talk. The plaintiff had previously testified that she couldn’t see the chimneys on the defendant’s house; had never noticed the' house very much; that she didn’t notice the chimney before she was hurt, and didn’t know anything about the defendant’s house at the time of the accident. It was shown that there was a tree in defendant’s yard back of his house, the limbs of which projected over the top of the chimney and interfered somewhat with the view of the chimney from ■some points.

The defendant relies largely on the evidence of notice to plaintiff the year before the accident. Still it has been held in many cases that previous knowledge by the party injured of the existence of the defect from which the injury arose does not per se establish negligence on his part. ( Weed v. Village of Ballston Spa, 76 N. Y. 329; Bassett v. Fish, 75 id. 304; Palmer v. Dearing, 93 id. 7; Evans v. City of Utica, 69 id. 166.)

In Cook v. Champlain Transportation Co. (1 Den. 91,101) it is said that “ while a person confines himself to a lawful employment on his-own premises, his position, however injudicious and imprudent it may he, is not, therefore, wrongful; and that his want of due carA or judgment in its selection can never amount to negligence so as-thereby to deprive him of redress for wrongs done to him by others.”

Dollard v. Roberts (130 N. Y. 269) was an action to recover damages for injuries to plaintiff’s minor daughter arising from the fall of plaster from the ceiling of a hallway in a house of defendant, an upper floor of which was leased to and occupied by the plaintiff and his family, the hallway bteing used in common by the tenants. It was held that the fact that plaintiff and his daUghter had knowledge of the condition of the ceiling and may have apprehended that the plaster would fall, did not necessarily charge either of them with contributory negligence in passing under it; that while-the duty was imposed upon the daughter of using due care to avoid danger, it could not be said as matter of law "that she failed in that, respect by not constantly having in. mind the condition of the ceiling when passing" through the hallway, as she was obliged to do in going to and fro. It was said that the girl was not necessarily chargeable with negligence for having for the time being forgotten the condition of the ceiling or for having her thoughts or attention directed from it at the time of the occurrence.

The plaintiff was upon her own premises at her usual work, but was in fact in a place made dangerous by defendant’s chimney. She: was, as it may be inferred from the evidence, about five' feet from, the defendant’s house and her two married daughters were with her.. Evidently none .of them realized that their position was dangerous.. Whether or not, under the circumstances, the plaintiff ought to have-realized the) danger and avoided it, was, we think, a question of fact, for the jury to decide.

It follows that a new trial should be granted.

All concurred.

Judgment and order reversed on the law and the facts, and a new-trial granted, with costs of the appeal to the appellant to abide the-event.  