Opinion
November Term, 1903.
Charles Gibson Bennett [ Theodore F. Humphrey with him on the brief], for the appellant.
Isaac M. Kapper [ Thomas E. Pearsall with him on the brief], for the respondent.
Present — GOODRICH, P.J., BARTLETT, WOODWARD, JENKS and HOOKER, JJ.
The plaintiff has had a recovery on account of injuries to her person, resulting in a scar across her forehead, which, as appears from the evidence of her witnesses, will always remain with her. She was four years old at the time of the trial. Her forehead was severely cut, and she suffered pain at the time of the infliction of the injuries and for a period of some weeks, during which the wound was healing. The defendant asks that the verdict be reduced. It was in the sum of $1,800, and we do not feel that this is any too large an amount.
The only other question urged by the defendant is that the verdict is against the weight of evidence. Our examination of the evidence does not lead to the belief that this contention should be sustained. A brick chimney, twenty-five feet high, three feet one inch by one foot four inches, fell over, and some of the brick, crashing through the skylight, struck and injured the plaintiff. Two witnesses had observed the chimney sway, as long as a year prior to the accident; although it was built between two and one-half and four inches from a brick wall twenty-three feet high, there is evidence to show that it was not secured to the wall in any manner, either by building brick-retaining points into the wall, or by angle-iron insertions. This was, in our opinion, abundant to support the verdict. We believe that the mere fall was sufficient to raise a presumption of negligence, and that such a presumption alone is enough to sustain the verdict, even in face of the attempted explanation on the part of the defendant. What Judge CULLEN said in Griffen v. Manice ( 166 N.Y. 188) in relation to the falling cable and elevator counterbalance weights is, we think, equally well said about this chimney.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.