60 N.Y.S. 81 | N.Y. App. Div. | 1899
The defendant was the owner of an apartment house, No. 28 First place, in the borough of Brooklyn. The plaintiff, when passing this number, at half-past seven o’clock on the evening of March 9, 1898, saw a notice upon the premises stating that a fiat was to let there. She went to the basement and pulled the bell at the basement gate. A window in the house was raised at this moment. The plaintiff turned and moved half a step toward this window, which was to her left as she faced the house, the basement gate being at her right hand, when she fell down a flight of steps constituting the cellarway of the premises, and suffered a fracture of her left leg just above the ankle. The distance from the basement gate to the beginning of this cellar stairway is forty and one-half inches. A portion of the window, of which .mention has- been made, is directly above the steps leading down to the cellar.
Upon the trial the plaintiff was not allowed to prove her purpose in going to the basement where she was thus injured. It is clear that the rulings which prevented her from showing that she was looking for a flat at the time, and desired to inquire about the flat referred to in the notice, and with that object in view; went to the basement because she thought the janitor lived there, were erroneous, and the case must now be disposed of as though the plaintiff had established these as her reasons for going upon the defendant’s-premises. All that she saw on the notice was the announcement “ Flat to let.” It does not appear that the notice contained anything else. The defendant admits ownership of the house, and, in the absence of any proof to the contrary, the presumption is that he was in possession and that the notice was displayed by him or his agents. I think that the display of- such á notice by a house-owner upon the premises, in the absence of any direction therein to apply elsewhere, constitutes an implied invitation to' persons
The circumstances thus justifying the inference that there' was an invitation to the plaintiff to enter for the purpose of inquiry, the question is presented, whether the proximity of the cellar-steps to-the basement gate did not render it negligent on the part of the defendant to ask strangers to come there without. in some manner -warning them of. the liability to which they were exposed of breaking their necks by taking a single step backward from the gate. The distance between the gate and the stone stairway, was. less than three and a half. feet. '“ After reaching this place and .ringing the' bell,’-’ says the plaintiff, “ I made a turn to the window and -made a step to' the window; in turning to the window, I made a half turn as I made half a turn,-1 -was pitched down the steps.” It seems tome that negligence is fairly predicable of the conduct of a house-owner who invites one unwarned into a place where a single step may prove so dangerous, and, therefore, that the ¡question -of the defendant’s negligence should have been left to the jury.
In behalf of the defendant it is argued that “ the plaintiff’s case upon this point must hang upon the proposition that it was inherently dangerous to have the cellarway three feet four and one-half' inches from the gate into the basement; ” and his counsel answers this proposition by sayiug that “ there is no proof of any unusual construction, and the plaintiff would not have been hurt.had she used, care to see where she Avas going and had she not turned away from the gate towards the Avindow.” But he overlooks the fact that the plaintiff sought, to prove' that the ‘constructitm. was Unusual,, and that the court Avould not receive the evidence offered for that purpose. The defendant having had this evidence excluded upon his own objection is in no position to contend that .such. proof Avas material and necessary to make out the plaintiff’s cause of actionbut if he is right in this respect the ruling excluding it was error which in ' itself Avould demand a reversal of the judgment. ■ As to. the question, of contributory negligence, I think the jury might well have found that there was nothing imprudent in -doing all that the plain
Upon this record, therefore, it seems to me that the plaintiff is ■entitled to a new trial. It may be that the case will present a different aspect when the defense is put in. For example, an invitation to come upon the premises could hardly be predicated of the display of a notice which directed persons desiring to hire flats to Apply at some other address. While the cross-examination of the plaintiff assumed that such was the fact here, that assumption finds no support in the proof; and we must determine the appeal without regard to the intimation of counsel on the subject.
All concurred.
Judgment and' order reversed and new trial granted, costs to Abide the event.
