106 Va. 803 | Va. | 1907
delivered the opinion of the Court.
The defendant in error was the plaintiff in the lower court and brought an action against the plaintiff in error to recover damages for personal injuries sustained by the plaintiff in falling down a flight of steps leading into a cellar under the dwelling house of the defendant.
There was a demurrer to the declaration, which the court overruled, whereupon the defendant pleaded not guilty, and upon trial of that issue, a jury having been waived, the court assessed the plaintiff’s damages at $750, and rendered judgment accordingly. To that judgment the defendant brings error.
The gravamen of the declaration is: That the plaintiff conducted a dress-making establishment in the town of Phoebus; that the wife of the defendant became a customer of the plaintiff and engaged her services to do certain work at her shop; that in connection with that employment it became necessary for the plaintiff to call at the residence of the defendant; that though there is a front entrance to the defendant’s premises, it is customary for a person, going there on a mission such as the plaintiff’s, to enter by the side or hack entrance; that this is expected, and the premises are so arranged as to give visitors notice of that fact; that on the evening of the accident “about nighttime,” the plaintiff approached the defendant’s dwelling by the route indicated, and entered an open vestibule or hallway in the building and observing several doors opening on' the vestibule, which seemed to lead into the house, hut not knowing through which door she was expected to enter, plaintiff “knocked upon one of the said doors, which she took to he the
If we assume, as we must assume on demurrer to the declaration, that the plaintiff went upon the premises of the defendant lawfully and by implied invitation, inasmuch as her errand concerned the business of the defendant’s wife, the law is well settled that it was the duty of the defendant to exercise ordinary care to have the premises in reasonably safe condition for the visit. Cooley on Torts, 718; Shear. & Red. on Neg. (3d Ed)., section 499 (a) ; Beach on Cont. Reg. (3d Ed.), 79, 80; R. & M. Ry. Co. v. Morris’ Admr., 94 Va. 493, 27 S. E. 70, 37 L. R. A. 258.
But the defendant was in no sense the insurer of the safety ■of the plaintiff; and all she was entitled to demand or expect was that, while exercising reasonable care for her own safety, the defendant would likewise use ordinary care not to expose her to danger. Ordinary care, then, in this instance, was the measure of the defendant’s duty to the plaintiff, and the law imposed no higher degree of responsibility upon him.
There is no rule of law which denies to the defendant the right to have a cellar under his residence; nor was there any ■such defect in connection with the location or construction of the entrance to the cellar in question as would fix upon the defendant want of ordinary care with respect to it. The opening was guarded by a closed door, and in the exercise of ■ordinary care the defendant could not have anticipated that a person unacquainted with the locality and casually visiting the
Uor is the pretension of the plaintiff strengthened by the fact that the defendant, while in another room entering on the vestibule, in response to her knock, bade her enter. His invitation was not for the plaintiff to enter the cellar, but the room in which he was.
■The accident was manifestly the result of a misapprehension on the part of both plaintiff and defendant, and to which both innocently contributed—the defendant by failing to accurately locate the source of the plaintiff’s rap, and the plaintiff to correctly determine whence the responsive invitation to enter proceeded.- In other words, the injury was proximately occasioned by mutual misunderstanding, responsibility for which, if anybody was in fault, attached to both alike. In such case the law cannot undertake to apportion the blame, but must leave the parties where it finds them.
The rule is thus stated: “If the proximate cause of an injury was negligence of both plaintiff and defendant concurring and co-operating together, plaintiff is not entitled to recover.” Richmond Traction Co. v. Martin’s Admr., 102 Va. 209, 45 S. E. 886; Richmond P. & P. Co. v. Gordon, 102 Va. 498, 46 S. E. 772.
In the case of Newport News, &c., Elec. Co. v. Clark, 105 Va. 205, 52 S. E. 1010, the following quotation is made from the decision of Judge Cooley in Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812: “The fact that it (the accident) was avoidable does not prove that there was fault in not anticipating and
The cases of Hilsenback v. Guhring, 131 N. Y. 674, 30 N. E. 580, and Ryerson v. Bathgate, 67 N. J. Law. 337, 51 Atl. 708, 57 L. R. A. 307, are very much in point. In the former case Guhring, who was the guest of Hilsenbeck at his home in the city of Brooklyn, descended from the upper floor of the dwelling, where the defendant and his wife resided, to the first floor to make use of the water-closet. “The stairs terminated in a hall, in which the water-closet was located. ’ The hall at the time was dark, receiving no other light than came from a window over the street door; and, as the day was dark, this was insufficient to clear the darkness from the hall. There were three doors in the hall-—one leading into the saloon, the next to the basement, and the third to the water-closet.” The basement door was partially open, and the plaintiff, suppbsing that to be the door of the water-closet, passed through it and fell down the stairs into the basement below, breaking his leg. A gas jet was maintained in the hall, but was not at the time lighted. All the judges present concurred in the opinion that there could be no recovery.
In the second case, the plaintiff, Mrs. Bycrson, went upon the defendants’ premises at their request to deliver a domestic
We are of opinion that the law, on the demurrer to the
The judgment must, therefore, he reversed; and this court will make such order as the Circuit Court ought to have made, sustaining the demurrer and dismissing the case.
Reversed.