Judgment and order unanimously affirmed, with costs, on the opinion of Barnard, J., at Trial Term. Cullen, J., absent.
The following is the opinion of Barnard, J.:
BARNARD, J.:
The defendant is a dealer in lumber. The plaintiff went with her husband on the day of the action to Pawling, where defendant's yard is located. Her husband needed a small quantity of lumber, and among other pieces he wished an ironing board for his wife, the plaintiff herein. He went to defendant's yard to purchase the lumber. Some difficulty was encountered in finding a board wide enough for the ironing board. When one was selected it was placed with the other lumber selected by plaintiff on a pile of lumber under a shed. The plaintiff's husband told the defendant's agent he would get his wife, who was at the store near by, to look at the board and have her judgment on its width. As has been stated, the lumber was all in one place, and between the pile on which the lumber selected, together with the ironing board, was placed, there was a vacant space or alleyway three feet about in width, and then another pile of lumber some six feet high. This pile was secured by an upright slat nailed at the bottom and the top to prevent the pile from falling down. There were two of these slats so secured. When the husband returned with the plaintiff she objected to the width of the ironing board and her husband went to get a rule to measure it, and almost immediately after he left the plaintiff, who was standing in the open space some five or six feet from the outside of the shed, the pile of lumber so fastened gave way without being touched by the plaintiff. The lumber covered her and inflicted several injuries, one quite serious. The slats were insecurely nailed. The defendant was guilty of negligence in respect thereto. The defendant did not use reasonable prudence and care to keep the property in such a condition that those who went there should not be unreasonably and unnecessarily exposed to danger. The lumber bought by the husband was put there for her in part to see, and for her husband to take away. The plaintiff was guilty of no negligence. She was properly at the yard and at a place where she was invited to go and suddenly was overthrown by the falling lumber. Among her injuries was one to the knee joint. The accident was in April, 1896, and the plaintiff has been almost helpless since. She is lame and is recovering very slowly. The evidence shows that she will recover in a year or two. The recovery from injuries to the knee joint cannot always be reckoned on, but I believe in two years from this time her recovery will be complete. The plaintiff has suffered pain and apprehension and has tried to effect a cure by the advice of very eminent physicians. I think the damages she is fairly entitled to are $800. I direct judgment to be entered in favor of the plaintiff against the defendant in accordance herewith for the sum of $800 damages with costs which are hereby awarded to the plaintiff, together with an additional allowance of five per cent.