228 A.D. 158 | N.Y. App. Div. | 1930
The plaintiff Lillian M. Rowell was injured in falling down a stairway. The verdicts recovered by the plaintiffs are for damages resulting" from such injuries. The accident happened in a building in the town of Cheektowaga which was adapted for use as a roadhouse and dancehall. The defendant Feigel, who was in possession of the premises as a tenant, had invited the plaintiffs to come and inspect the premises as prospective purchasers. Accepting this invitation, the plaintiffs, together with some friends, met Feigel at the premises. The improvements consisted of a cottage residence, a large dancehall and a room in front of the dancehall called, in the record, a barroom. All entered the dancehall and then went into the residence, and while the men were discussing business, Feigel spoke to the plaintiff Lillian M. Rowell saying: “ Mrs. Rowell, you just help yourself and look the place all over.” The plaintiff Lillian M. Rowell, following this suggestion, left the others and went alone into the dancehall and through a doorway from the dancehall into the barroom. As she passed through this doorway she saw a door to her right which was “ just ajar.” This door which was ajar was behind the bar. On the door was a sign on which was the word “ Private.” Mrs. Rowell saw this word on this sign. Going then behind the bar to this door, she put her hand on the door and pushed it away from her and immediately fell down a flight
We do not feel called upon to decide the question as to whether this construction was a nuisance or whether there was negligence involved on the part of the' defendants. We are convinced that the plaintiff Lillian M. Rowell has failed to show that she was free from contributory negligence. (McFarlane v. City of Niagara Falls, 247 N. Y. 340.) She was not precipitated down the stairs by anything giving way; she intentionally pushed the door open, knowing that it swung away from her; she then voluntarily stepped into an unknown space in a strange building without taking any precaution for her safety.
In Rohrbacher v. Gillig (203 N. Y. 413) and Hudson v. Church of Holy Trinity (250 id. 513) plaintiffs opened doors and stepped in darkness into a stairway concealed by the darkness, falling and receiving injuries. In each of these cases the plaintiff was held guilty of contributory negligence. We think the principle of these cases is controlling here.
There is another reason why these judgments must be reversed, and for its understanding we must state additional facts. The building where the accident occurred was built about seven years previously. The then owner executed to the defendant East Side Building Company, Inc., a second mortgage on the premises which that company assigned to the defendant John Hutzler Lumber Company, Inc. With this mortgage still outstanding, the premises were sold to a man named Wieberg, who rented the premises to defendant Feigel. While Wieberg still owned the premises, the John Hutzler Lumber Company, Inc., mortgage was foreclosed, and the premises bought in by the John Hutzler Lumber Company, Inc., and a referee’s deed to that corporation executed and delivered.
For these reasons, the judgments should be reversed on the law and the facts, and the complaints dismissed, with costs.
All concur. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ.
In each case: Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs.