38 N.Y.S. 682 | N.Y. App. Div. | 1896
. Inasmuch, as the plaintiff’s complaint was dismissed at the trial she is. entitled- to the most favorable view of the evidence, and the inferences that are definable therefrom in the review of the decision made at the time her complaint was dismissed. (Raabe v. Squier, 148 N. Y. 87; Hanover Bank v. American Dock & Trust Co., Id. 619.) On the afternoon of the 17th of November, 1893, the plaintiff, in company with her sister, Mrs. Davis, visited the store of the defendants for the purpose of purchasing a pair of rubber shoes. They entered the store from Market street and passed several feet northerly along an aisle until they reached an
In Hart v. Grennell (122 N. Y. 374) it was said in the course of the opinion by Brown, J., viz.: “ The general rule applicable to persons occupying real property for business purposes, and who invite and induce others to visit their premises, is, that they must use reasonable prudence and care to keep their property in such a condition that those who go there shall not be unreasonably and Unnecessarily exposed to danger. The measure of their duty is reasonable prudence and care. (Larkin v. O’Neill, 119 N. Y. 221;
- In James v. Ford (30 N. Y. St. Repr. 668) in the course of the opinion it was said: It thus became defendant’s duty to exercise reasonable care in maintaining the premises, and the means of entrance and departure at all times in such condition that others visiting his store upon business might enter and depart with safety to themselves, and for an injury arising from the breach of that duty the defendant is answerable in damages.”
In Larkin v. O’Neill (119 N. Y. 221) the only evidence of negligence was the presence of a figure for exposing children’s clothing upon steps, next the railing, and the absence from the steps of footr holds, that is, brass plates or rubber pads. In that case it appeared that a large number of people frequented the store of the: defendant every day, and in the course of the opinion it was said, viz.: “ He. was bound to use reasonable prudence and care in keeping, his place in such a condition that people who went there by his invitation were 'not unnecessarily or unreasonably exposed to danger. The measure of his duty was reasonable prudence and care.” And in support of that proposition Beck v. Carter (68 N. Y. 283); Larmore v. Crown Point Iron Co. (101 id. 391-395), and Bennett v. R. R. Co. (102 U. S. 577) were cited.
In the Larkin case the plaintiff fell while walking down a broad caipeted stairway between four and five o’clock in the. afternoon; there was nothing in the manner in which the stairs were constructed, used or kept from which such a result could reasonably be anticipated; and upon the evidence in that case it was finally .said that it did not present a case, of negligence on the part of the defendant proper to submit to the jury. The case differs so . essentially, from the facts in the case before us that it does not support the contentions of the defendants.
In Homer v. Everett (15 J. & S. 298; S. C. affd., 91 N. Y. 641). it was said to be the duty of the owner- or- occupant of a building, to maintain it in such a condition that those persons whom he invites upon the premises shall not be injured by any defect in the building.
In. McRickard v. Flint (114 N. Y. 222) it was alleged that thq defendant was hable for not having complied with chapter 547 of the
In Swinarton v. Boutillier (7 Misc. Rep. 640), in the course of the opinion delivered in that case, the doctrine laid down by Shearman & Redfield on Negligence in section 704, that it is. the duty of parties to Use ordinary care and diligence to keep théir premises in a safe condition for the presence of persons who edme thereon by invita^ tion, express or implied, or for any other purpose, beneficial, to them, was approved, and a verdict based upon evidence tending to shbw that there had been non-compliance with the rule was upheld.
In a note to Mallach v. Ridley (24 Abb. N. C. 172) several cases are cited and commented upon tending to support the géneraí rulé to which we have already adverted* indicating that where there is evidence upon the question of whether there has been reasonable, care or hot exercised by the defendants, the casé should be submitted to thé jury.
The learned counsel for the defendants calls our attention to Larmore v. Crown Point Iron Co. (101 N. Y. 391). In that case it Was held that an owner of premises owés no legal duty to a stranger coming upon his premises, which requires him to keep the machinery-in repair. But the learned judge who delivered the opinion in that case recognizes the rulé which we have already stated, and uses the following language at page 395: “ So, also, where the owner of land,
Defendants’ learned counsel calls our- • attention ;to. Hilsenbeck v. Guhring (131 N. Y. 674), which is quite unlike the case-before us. There the plaintiff, in the night time, opened a door and stepped to. the head of a stairway and fell down stairs, and it was held that the facts disclosed did not present a case for the jury. '
The case of Sterger v. Van Sicklen (132 N. Y. 499) recognizes the rule that where- property is put to public use the party is bound to observe reasonable care in keeping it in condition to save harmless those invited to come upon it for bis benefit and profit.
tJpon all. the circumstances-we are--inclined to think the jury would have been warranted in finding that the plaintiff .entered the store as a customer, under an implied authority from the .'defendants,; and. .that she w.as rightfully upon the ¡premises, and. that under the circumstances.disclosed, as to the presence of one of the defendants just before the injuries were received, the authority of the defendants for her. being in and about the store might' have been found by the jury, and the evidence, required the court to submit , to the jury the question as to whether the defendants had exercised that care and. prudence which the law requires of them in respect to parties situated as the plaintiff was at the time she received the injuries alleged.
. (2) It is contended in behalf of defendants that plaintiff was guilty of contributory negligence. By all the facts and circumstances disclosed in the case upon that, subject, we are led by them to say1
The foregoing views lead to the conclusion that there „was error in dismissing the plaintiff’s complaint, and that the questions of fact ought to have been submitted to the jury.
All concurred, except Adams, J., not sitting.
Motion for a new trial granted and a new trial ordered, with costs to abide the event.