#### MARTIN J. VINCETT, Respondent, *v.*CHRISTIAN COOK, Appellant.

*Negligence—owner of dilapidated building adjoining highway*— *duty and liability*of— *JMdence.*

An owner oí land which adjoins a public street in a populous city, who suffers a building to remain thereon in an unsafe or dilapidated condition, is liable to a party sustaining damages by the falling of the wall of such building, although the fall of the wall may have been the result of a storm of unusual violence.

Failure on the part of the owner of a building to keep it in a safe condition, and resulting damages, throw upon the owner the burden of showing that the building was safe so far as diligent examination would show.

Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

A wall of defendant’s building was blown over by a strong wind upon the plaintiff, who was passing along the street, and this action was brought to recover damages for the injury sustained by the plaintiff thereby.

*Fuller &*Vann, for the appellant.

The owner of a building is not an insurer of its safety. The law requires of him simply ordinary care and vigilance. (Shearman and Redfield on Negligence, § 498; Wharton on Negligence, §§ 26, 415.) The only principle by which the defendant can be held liable at all in this action, is, that it is negligence to permit things to remain near a highway in such a manner that in the natural course of events they may fall and injure persons lawfully passing. (Wharton on Negligence, § 839; *Hunt*v. *Hoyt,*20 Ill., 544; *The Rector, etc., of the Church of the Assumption*v. *Buckhart,*3 Hill, 193.) But the law does not award damages for the consequences of a lawful act performed in a lawful manner, nor from injuries which- result from accident, or which could not be prevented by ordinary human care. *(Livingston*v. *Adams,*8 Cow., 175 ; *Williams*v. *N. Y. Central R. R. Co.,*18 Barb., 222, 247; *Clark*v. *Foot,*8 Johns., 421; *Panton*v. *Holland,*17 id., 92, 99; *Radcliff*v. *Mayor of Brooklyn,*4 N. Y., 106, 200; *Crofts*v. *Waterhouse,*3 Bing., 319.) Nor can a man be held responsible for failing to prognosticate *319natural casualties, such as are called the acts of God. (Wharton on Negligence, § 416, and cases cited; *Price*v. *Hartshorn,*44 Barb., 655; *Merritt*v. Earle, 29 N. Y., 117.) Nor for ignorance of facts which ordinary diligence could not have discovered. (Wharton on Negligence, §§ 26, 415.)

*Hiscock, Gifford &*Doheny, for the respondent.

The old and well established maxim, *sic utere tuo ut alienum non losdas,*is especially applicable to owners of real estate, particularly in cities and adjoining highways, and has been expressly or in effect asserted, by the courts in numerous decisions. *(Althorf*v. *Wolfe,*22 N. Y., 355; *Benson*v. *Suarez,*43 Barb., 408.) As having a covered coal hole or other excavation in the sidewalk. *(Anderson*v. *Dickie,*26 How., 105, 117; *Congreve*v. *Smith,*18 N. Y., 79, 84.) Building and bridging a race-way across a highway, and failing to keep such bridge perfectly safe to travel over: held, one sustaining injuries thereby, without gross neglect, was entitled to recover, even though such builder had used the utmost care to prevent such injury. *(Dygert*v. *Schenck,*25 Wend., 446; *Barton*v. *City of Syracuse,*39 N. Y., 54.) A traveler merely detained in a highway, by a fence across the same, may recover his damages of detention from him who so caused it. *(Pierce*v. *Dart,*7 Cow., 609.) So the owner of horses, whose servant leaves them unhitched in the street, is liable to him against whom they run for his injuries thereby. *(Morris*v. *Kohler,*41 N. Y., 42, 46.) And he who is injured by a collision in a highway may recover, if he used ordinary care to avoid it, unless it be shown in defense to have been done by inevitable accident, or that the defendant was without blame, and the injury he caused unavoidable. *(Center*v. *Finney,*17 Barb., 94; *Qurman*v. *Bennett,*6 M. *&*W., 499, 510; *Leame*v. *Bray,*3 East, 593; *Castle*v. *Duryee,*2 Keyes, 169; *Jetter*v. *N. Y. and Harlem R. R. Co.,*id, 174; *Guelle*v. *Swan,*19 Johns., 381.) It cannot be reasonably claimed that he who travels in the streets of a city must critically examine and constantly watch the tops of the walls of the adjoining buildings, and determine and avoid them if unsafe, or be held guilty of negligence and not entitled to recover in an action like this; because, in thus directing his attention upward, he might fall into some excavation beneath him and receive injury, and *320so, for want of watching in th'at direction, be held not entitled to recover for such injury. This respondent had a right to assume that appellant would maintain this building and wall as required by the law of the land. Every owner of real property and buildings is presumed to know in what way to make such buildings safe against all ordinary winds, and is also bound to know enough to keep the same in such condition as to prevent injuries thereby to others. *(Benson*v. Suarez, 43 Barb., 408; *Qurman*v. Bennett, 6 M. & W., 499, 510; *Morris*v. Kohler, 41 N. Y., 42.) And want of mental capacity is no defense to actions for personal injuries. *(Bullock*v. Babcock, 3 Wend., 391, 394.)

Gilbert, J.:

We perceive no cause for disturbing this judgment., The liability of the defendant depended solely upon questions of fact. These were determined by the jury upon instructions as to the law, which appear to us to have been quite as favorable to the defendant as the evidence warranted. Upon a .well established principle, therefore, the verdict must be held to be conclusive. Upon the merits, also, the case is clear. An owner of land which abuts on a public street in a populous city, who suffers a building to remain thereon in an unsafe or dilapidated condition, is not exempted from liability for an injury to a person lawfully using the street, which injury was occasioned by a part of the building being detached from the rest by a storm, and falling upon him, because the storm was one of unusual violence. It was, no doubt, lawful for the defendant to erect the building in question, and to keep it where it stood. A man has an absolute right to use his own property as he pleases for all the purposes to which that kind of property is usually applied, and this right cannot be interfered with so long as it is not a nuisance. A building adjoining a highway, which is in such a condition-as to endanger the safety of persons passing along it, is a nuisance. The law casts -upon the owners of buildings so situated the duty of preventing their being or becoming dangerous to persons lawfully passing along the highway. Failure in such duty, and resulting damage, furnish *prima faoie*evidence of negligence by the maxim *res ipsa loquitur.*The burden was thus cast upon the defendant of proving that the build*321ing, at the time of the accident, was safe, so far as diligent examination would show. On this point there is no room for argument against the verdict of- the jury.* There is not the slightest proof of any contributory negligence on the part of the plaintiff that we can discover, and no testimony tending to prove it has been pointed out.

We are inclined to think the question put to the witness Soule, viz.: *“*What was the condition of that wall; was it safe, or otherwise,” was not improper. It did not necessarily call for the opinion of the witness, but for the result of his actual observation. Matters of common observation may ordinarily be proved by those who witness them. It certainly did not require an expert to tell whether a building, in the condition this was, was safe. But the exception is unavailing, because no ground of objection to the testimony was stated. Where the objection is to the mode of proving a fact, and not to proof of the fact itself, it must be distinctly placed upon that ground so that the opposite party may obviate the objection by proving the fact in a legal manner. With respect to the other objections, it is only necessary to say, that we have examined all of them and find in them nothing worthy of remark.

The judgment must be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

*

 Kearney v. Lond. B. and S. Railway Co., L. R. (5 Q. B.), 411; Scott v. Lond. Docks Co., 3 H. & C., 596; Fletcher v. Rylands, L. R. (1 Exch.), 279 ; S. C., 3 Hof. L., 339; Worster v. Forty-second Street R. R. Co., 50 N. Y., 203; Dygert v. Schenck, 23 Wend., 447; Whart. on Neg., §§ 839 to 844.