Cardamons, J.
Claimants appeal from a judgment dismissing their claims for damages resulting* from an assault upon them by an escaped convict. The Trial Judge held that the State was negligent in its supervision of Moseley, a convicted murderer whose vicious and remorseless character was known to the authorities and whose confinement was not merely for punishment but also for the protection of society.
We are asked to conclude, as the trial court did, that claimants are barred from recovering damages against the State upon the ground that claimants assumed the risk and were guilty of con-[59]*59tributary negligence. This we cannot do. One cannot be found to have assumed the risk unless it appears that at the time thereof he knew and fully appreciated the danger which he was about to encounter (McEvoy v. City of New York, 266 App. Div. 445, 448, affd. 292 N. Y. 654; 1 N Y PJI 2:55 and Comment, p. 139). In our view claimants did not have such knowledge as to appreciate fully the danger into which they entered.
We also find that the record contains insufficient evidence to support a determination that claimants ’ conduct precludes them from recovering against the State. The following analysis of the facts leads inescapably to this conclusion.
For three years prior to this incident, the claimant, Mrs. Kulaga, had been maintaining her widowed mother’s unoccupied premises at 278 Dewey Avenue, Buffalo, New York. Pursuant to these responsibilities Janet Kulaga visited the premises approximately once a week to make sure that the furnace was operating and that heat was being maintained, snow removed, lawn mowed, and she arranged to have the house cleaned on a weekly basis. Mrs. Kulaga’s mother lived with these claimants and their three small children on Grand Island, New York. Mrs. Kulaga had lived at 278 Dewey Avenue as a child and until sometime after her marriage. She clearly had a right, and even a responsibility, to visit these premises on a regular basis.
She testified that on March 20, 1968 she received a phone call at about 2:00 p.m. from the New York State Employment Agency regarding a cleaning woman sent to 278 Dewey Avenue. She thought it was a practical joke since she had not requested anyone be sent there. Nevertheless she called a former neighbor and asked her to check on the house. It was reported back to her (following an inspection by the neighbor’s son) that the doors were locked and nothing was wrong. Mrs. Kulaga then relayed this information to the employment agency. Later that evening at 8:00 p.m., Mrs. Kulaga received a phone call from one Zella Moore, who identified herself as the cleaning woman sent by the employment agency. Zella Moore informed Mrs. Kulaga that there were orange and apple peels on the floor and that one of the beds looked as if it had been slept in. Mrs. Moore reportedly told Mrs. Kulaga, “ something funny is going on, don’t let your mother go in the house alone ”. Mrs. Moore also told Mrs. Kulaga that she left the house about 2:00 p.m. because she became frightened when no one had come by that time. When Mrs. Kulaga finished speaking with Zella Moore, she immediately called the Buffalo Police Department and asked them to check [60]*60the house, telling them of the previous phone call and telling them that there were no valuables in the house and that it was unoccupied. The police officer told claimant that they would check into it. Later that evening claimant remembered that her grandfather had left a gun in the attic, and she became concerned that if teenagers obtained entrance to the house they might injure themselves. Accordingly, the next morning at 7:15 a.m. she called the police again and told them about her concern regarding* the gun and asked the police to accompany her to the house to remove it. She testified that she was told that the police shifts would be changing and that she should call back at 8:30 a.m. Mr. and Mrs. Kulaga decided, however, to check the house that morning prior to Mr. Kulaga’s going to work. Mrs. Kulaga testified that when she and her husband arrived at the house, they walked around the back. She saw that one of the panes in the cellar window was broken, that it was a small 12-inch by 18-inch pane, and she further testified that she remembered saying to her husband 1 ‘ it must have been children getting in there; it would take a very small person to crawl through that opening ”.
Albert Andrews, a police officer employed by the City of Buffalo, on duty March 20, 1968 at Precinct 16, testified that this precinct included Meyer Memorial Hospital, the hospital that Moseley escaped from, and also included the Dewey Avenue premises. He stated that the police were aware that Moseley had escaped, were on the look-out for him, and had searched the area on the afternoon of the 20th, but that the circumstances in connection with 278 Dewey Avenue and the cleaning woman and the call from Mrs. Kulaga did not occasion any connection in his mind with the Moseley affair. He said that “ a cleaning woman in the house wouldn’t have any application” to the Moseley escape. In fact the police suggested that Mrs. Kulaga run over to the house to see if anything was missing.
Hugh Neff, the police officer on duty the following morning, March 21, 1968, testified as a witness for the State. He agreed that anyone with a vacant house would want to get the gun out. He also stated that there was nothing in his conversation with Mrs. Kulaga or his understanding of what went on the day before that would make him suspicious of Moseley being in the house, and that he did not mention the possibility of this to Mrs. Kulaga.
Thus, there were three phone calls to the Police Department (two by claimants and one by the employment agency) which never alerted the police or put them on suspicion that someone dangerous was lurking on the premises, let alone an escaped [61]*61and dangerous killer. These police, charged with the responsibility for apprehending this escaped convict, did not apprise claimants of even the possibility of danger.
Contributory negligence, like negligence itself, is based upon a duty owing to prevent injury. In the case of contributory negligence the duty is that the plaintiff avoid injury to himself. Every person is required to use reasonable care in that regard. The degree of care required is ordinary care only. In other words, the plaintiff must use for his own protection the care which a reasonable, prudent person would use under similar circumstances to protect himself from injury. (Clark v. Traver, 205 App. Div. 206, affd. 237 N. Y. 544; 1 Warren’s Negligence, Contributory Negligence, §§ 1.01, 10.10.) Claimants’ conduct is to be evaluated in its setting in the circumstances, and claimants are entitled to make assumptions that are reasonable in the light of them (James, Contributory Negligence, 62 Yale L. J. 691, 725).
Under these circumstances and considering the responsibility as well as the right that claimant Janet Kulaga had to be on the premises at 278 Dewey Avenue, such entrance by her onto the premises may not be construed to be other than the conduct that a reasonably prudent person would use under like circumstances to protect himself from injury. Her actions in calling a former neighbor, the employment agency, and the police for what she believed to be the possible danger that might result from children, or teenage vandals, and the fact that she was careful enough to take her husband with her, were sufficiently prudent in view of what she knew, and should not be construed to be contributory negligence.
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Cardamons, J.
Claimants appeal from a judgment dismissing their claims for damages resulting* from an assault upon them by an escaped convict. The Trial Judge held that the State was negligent in its supervision of Moseley, a convicted murderer whose vicious and remorseless character was known to the authorities and whose confinement was not merely for punishment but also for the protection of society.
We are asked to conclude, as the trial court did, that claimants are barred from recovering damages against the State upon the ground that claimants assumed the risk and were guilty of con-[59]*59tributary negligence. This we cannot do. One cannot be found to have assumed the risk unless it appears that at the time thereof he knew and fully appreciated the danger which he was about to encounter (McEvoy v. City of New York, 266 App. Div. 445, 448, affd. 292 N. Y. 654; 1 N Y PJI 2:55 and Comment, p. 139). In our view claimants did not have such knowledge as to appreciate fully the danger into which they entered.
We also find that the record contains insufficient evidence to support a determination that claimants ’ conduct precludes them from recovering against the State. The following analysis of the facts leads inescapably to this conclusion.
For three years prior to this incident, the claimant, Mrs. Kulaga, had been maintaining her widowed mother’s unoccupied premises at 278 Dewey Avenue, Buffalo, New York. Pursuant to these responsibilities Janet Kulaga visited the premises approximately once a week to make sure that the furnace was operating and that heat was being maintained, snow removed, lawn mowed, and she arranged to have the house cleaned on a weekly basis. Mrs. Kulaga’s mother lived with these claimants and their three small children on Grand Island, New York. Mrs. Kulaga had lived at 278 Dewey Avenue as a child and until sometime after her marriage. She clearly had a right, and even a responsibility, to visit these premises on a regular basis.
She testified that on March 20, 1968 she received a phone call at about 2:00 p.m. from the New York State Employment Agency regarding a cleaning woman sent to 278 Dewey Avenue. She thought it was a practical joke since she had not requested anyone be sent there. Nevertheless she called a former neighbor and asked her to check on the house. It was reported back to her (following an inspection by the neighbor’s son) that the doors were locked and nothing was wrong. Mrs. Kulaga then relayed this information to the employment agency. Later that evening at 8:00 p.m., Mrs. Kulaga received a phone call from one Zella Moore, who identified herself as the cleaning woman sent by the employment agency. Zella Moore informed Mrs. Kulaga that there were orange and apple peels on the floor and that one of the beds looked as if it had been slept in. Mrs. Moore reportedly told Mrs. Kulaga, “ something funny is going on, don’t let your mother go in the house alone ”. Mrs. Moore also told Mrs. Kulaga that she left the house about 2:00 p.m. because she became frightened when no one had come by that time. When Mrs. Kulaga finished speaking with Zella Moore, she immediately called the Buffalo Police Department and asked them to check [60]*60the house, telling them of the previous phone call and telling them that there were no valuables in the house and that it was unoccupied. The police officer told claimant that they would check into it. Later that evening claimant remembered that her grandfather had left a gun in the attic, and she became concerned that if teenagers obtained entrance to the house they might injure themselves. Accordingly, the next morning at 7:15 a.m. she called the police again and told them about her concern regarding* the gun and asked the police to accompany her to the house to remove it. She testified that she was told that the police shifts would be changing and that she should call back at 8:30 a.m. Mr. and Mrs. Kulaga decided, however, to check the house that morning prior to Mr. Kulaga’s going to work. Mrs. Kulaga testified that when she and her husband arrived at the house, they walked around the back. She saw that one of the panes in the cellar window was broken, that it was a small 12-inch by 18-inch pane, and she further testified that she remembered saying to her husband 1 ‘ it must have been children getting in there; it would take a very small person to crawl through that opening ”.
Albert Andrews, a police officer employed by the City of Buffalo, on duty March 20, 1968 at Precinct 16, testified that this precinct included Meyer Memorial Hospital, the hospital that Moseley escaped from, and also included the Dewey Avenue premises. He stated that the police were aware that Moseley had escaped, were on the look-out for him, and had searched the area on the afternoon of the 20th, but that the circumstances in connection with 278 Dewey Avenue and the cleaning woman and the call from Mrs. Kulaga did not occasion any connection in his mind with the Moseley affair. He said that “ a cleaning woman in the house wouldn’t have any application” to the Moseley escape. In fact the police suggested that Mrs. Kulaga run over to the house to see if anything was missing.
Hugh Neff, the police officer on duty the following morning, March 21, 1968, testified as a witness for the State. He agreed that anyone with a vacant house would want to get the gun out. He also stated that there was nothing in his conversation with Mrs. Kulaga or his understanding of what went on the day before that would make him suspicious of Moseley being in the house, and that he did not mention the possibility of this to Mrs. Kulaga.
Thus, there were three phone calls to the Police Department (two by claimants and one by the employment agency) which never alerted the police or put them on suspicion that someone dangerous was lurking on the premises, let alone an escaped [61]*61and dangerous killer. These police, charged with the responsibility for apprehending this escaped convict, did not apprise claimants of even the possibility of danger.
Contributory negligence, like negligence itself, is based upon a duty owing to prevent injury. In the case of contributory negligence the duty is that the plaintiff avoid injury to himself. Every person is required to use reasonable care in that regard. The degree of care required is ordinary care only. In other words, the plaintiff must use for his own protection the care which a reasonable, prudent person would use under similar circumstances to protect himself from injury. (Clark v. Traver, 205 App. Div. 206, affd. 237 N. Y. 544; 1 Warren’s Negligence, Contributory Negligence, §§ 1.01, 10.10.) Claimants’ conduct is to be evaluated in its setting in the circumstances, and claimants are entitled to make assumptions that are reasonable in the light of them (James, Contributory Negligence, 62 Yale L. J. 691, 725).
Under these circumstances and considering the responsibility as well as the right that claimant Janet Kulaga had to be on the premises at 278 Dewey Avenue, such entrance by her onto the premises may not be construed to be other than the conduct that a reasonably prudent person would use under like circumstances to protect himself from injury. Her actions in calling a former neighbor, the employment agency, and the police for what she believed to be the possible danger that might result from children, or teenage vandals, and the fact that she was careful enough to take her husband with her, were sufficiently prudent in view of what she knew, and should not be construed to be contributory negligence. In brief, this record reveals that the claimant Janet Kulaga was, as a matter of fact, not guilty of any contributory negligence which should bar her recovery here.
However, even if we assume some degree of contributory negligence on the part of these claimants as regards other risks, nevertheless when the harm to the claimants does not result from the hazard which their conduct has created but results in some other manner, such other contributory negligence, if such there be, does not bar their recovery (Restatement, Torts 2d, § 468).
Just as negligence is actionable only on account of the harm which was within the scope of the risk (Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339) so claimants’ entry into Mrs. Kulaga’s mother’s house may have been negligent with respect to the hazard of being set upon by children or teenage vandals, but was unrelated to the risk of being raped and robbed by an escaped [62]*62killer (2 Harper and James, Law of Torts, Contributory Negligence, § 22.0, p. 1230; Kinderavich v. Palmer, 127 Conn. 85, 98), As Prosser observes, there is general agreement that the difference between negligence and contributory negligence is that the latter bars recovery only when injury results from a hazard or risk which makes the plaintiff’s conduct negligent, but the plaintiff is not barred when his failure to exercise reasonable care for his own safety exposes him to a foreseeable risk or injury through one event and he is, in fact, injured through another which he could not foresee (Prosser, Torts [3d ed.], pp. 431-432; Boehlen, Contributory Negligence, 21 Harv. L. Rev. 233). Again, “where a plaintiff negligently exposes himself to one danger he is not barred from recovery by contributory negligence where the injury is received through another danger resulting from defendant’s negligence. This would seem clearly to be the rule applied by the courts of this State. ” (1 Warren’s Negligence, Contributory Negligence, § 11.04, p. 462; Underhill v. Major, 220 App. Div. 173, affd. 247 N. Y. 525; Webster v. Rome, Watertown & Ogdensburg R. R. Co., 115 N. Y. 112).
The facts in the present case clearly and unequivocally establish that these claimants, even assuming that they failed to exercise reasonable care for their own safety which exposed them to a foreseeable risk of injury from one cause, were in fact injured through another event which they could not possibly have foreseen. Only by viewing the facts from hindsight and drawing the most extreme inferences could the claimants be charged with foreseeing this danger to their safety. Since the trial court could not reach the conclusion that these claimants were guilty of contributory negligence under any fair interpretation of the evidence, we must reverse. (Citta v. State of New York, 35 A D 2d 288.)
We conclude, therefore, that these claimants were not guilty of contributory negligence on the conceded facts in this record which would bar their recovery. The judgment of the trial court dismissing their claim should be reversed and the matter remitted for assessment of damages.