| N.Y. App. Div. | Dec 30, 1927
The defendant is a corporation engaged in conducting a public garage in the city of Buffalo. The plaintiff, a stranger in that city, drove his automobile into the defendant’s garage for the purpose of having it stored. An employee gave the plaintiff a check for the automobile and stated that he would take the car from the entrance and place it. The plaintiff walked into the office, the door of which was only a short distance from where he stood by his car. He asked the employee in the office where he could go to a toilet. The employee stepped out of the office door and pointed to the rear of the garage and said: “ Go up three steps and turn to the left and take the second doorway.” The rear of the garage was from twenty to twenty-five feet from where he stood. The plaintiff walked to the rear where the employee had pointed, walked up the three steps, turned to his left, walked to the second doorway and stepped in. As he did so he fell down three or four steps and was injured. There was no light at the place where the plaintiff was injured. He testified that it “ was sort of hazy — dark; * * * sort of hazy; that you couldn’t see perfectly plain. * * * I stopped and I looked, and then I stepped. * * * Stepped as I thought inside the door on the left.” The defendant’s employee, when he directed the plaintiff, did not warn him that there were steps , leading from the second door. i '
At the close of the plaintiff’s case the learned trial justice dismissed the complaint upon the ground that the plaintiff was negligent as a matter of law. We think that the testimony introduced by the plaintiff made a prima facie case. The plaintiff was an invitee, upon the defendant’s premises under an invitation to enter for the purpose of storing his automobile. While there the defendant owed him the duty of not unreasonably exposing him to danger. In Hart v. Grennell (122 N.Y. 371" court="NY" date_filed="1890-10-21" href="https://app.midpage.ai/document/hart-v--grennell-3596263?utm_source=webapp" opinion_id="3596263">122 N. Y. 371) the court stated the general
As an incident to the business of storing the car for hire, the defendant, through its employee, undertook to direct the plaintiff to the toilet. If the plaintiff, without instructions, had undertaken to find a toilet in the rear part of the garage and had been injured, a different question would have been presented. The plaintiff, however, followed the instructions received from the employee and was injured. When the defendant’s servant undertook to instruct the plaintiff how to reach the toilet, he was bound to instruct him with reasonable care.
“ There are cases where the law imposes duties in addition to those created by express contract. In those cases ‘ liability for negligence rests on the principle that if a person undertakes to do an act or discharge a duty by which the conduct of another party may be properly regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence.’ (29 Cyc. 426; Whart. Neg. [2d ed.] § 437.) ” (Miller v. International Harvester Co., 193 A.D. 258" court="N.Y. App. Div." date_filed="1920-07-06" href="https://app.midpage.ai/document/miller-v-international-harvester-co-5258518?utm_source=webapp" opinion_id="5258518">193 App. Div. 258.)
In view of the condition of light the question of whether the instructions were negligent becarfee the plaintiff was not warned of the steps leading down from the second door presented a question of fact which should have been submitted to the jury.
It also seems to us that the question of the plaintiff’s contributory negligence was for the jury. He was an invitee upon the premises. He followed exactly the instructions which he received from the defendant’s servant. He had a right, to a certain extent, to rely upon such instructions and to govern his conduct accordingly. The principle applicable to cases where a person .has been injured at a railroad crossing, while attempting to cross after being instructed to do so by the flagman, is applicable. In such a case Judge Vann, writing for a unanimous court, in Oldenburg v. N. Y. C. & H. R. R. R. Co. (124 N.Y. 414" court="NY" date_filed="1891-03-10" href="https://app.midpage.ai/document/oldenburg-v-new-york-central--hudson-river-railroad-5479134?utm_source=webapp" opinion_id="5479134">124 N. Y. 414) quoted from Glushing v. Sharp (96 id. 676) as follows: “ The raising of the gate was a substantial assurance to him of safety, just as significant as if the gateman had beckoned to him or invited him to come on, and that any prudent man would not be influenced by it is against all human experience.”
The judgment should be reversed on the law and a new trial granted, with costs to the appellant to abide the event.
All concur, except Taylor, J., not voting. Present —■ Hubbs, P. J., Clark, Sears, Taylor and Sawyer, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.