
    George W. Wells, Resp’t, v. Rufus A. Sibley et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Negligence—Cellar door.
    In front of defendants’ building was a passage to the cellar closed by an iron door which opened on hinges. While plaintiff was hastily passing-along the sidewalk about seven o’clock at night he fell over this door, which was open, and against an iron boiler which defendants had placed, on the sidewalk. Held, that the case was properly submitted to the jury.
    2. Same.
    Plaintiff testified that after his fall he looked down in the cellar and saw one or two men with a lighted lantern. The only employees who had access to the passageway were two engineers, one of whom testified that he left at six o’clock, and the other that he left-shortly after seven, and fastened the door. Held, that the preponderance of evidence tended to show that one of the engineers negligently left the door open, and, if this was¡ so, defendants were liable.
    Appeal by the defendants from a judgment in favor of the plaintiff, upon a verdict rendered at the Monroe circuit in January, 1891, and from an appeal denying the defendants’ motion for a new trial on the minutes.
    
      P. Chamberlain, Jr., for resp’t; Albert JET. Harris, for app’lts..
   Lewis, J.

The defendants are the owners of the Osborne house block, in the city of Rochester, fronting upon Division street, and in the sidewalk of Division street, a few feet from St. Paul street, and in front of their block, the defendants had constructed and maintained an opening in the sidewalk twenty-four by thirty-four inches in size, with a stairway leading therefrom down into the cellar or basement of their block of buildings. The opening in the walk was covered by an iron flap or door attached to one side of the opening by hinges, and .so arranged that it could be opened so as to admit persons into the cellar or basement of the buildings. The cfoor, when closed, was on a level with the sidewalk.

About seven o’clock on the evening of the 23d of November, 1886, the plaintiff was hastily passing along the sidewalk on Division street, in front of the defendants’ building, and ran against this door which had been raised and was partly open; be fell over "the door and struck his head against an iron boiler which the defendants had placed upon the sidewalk near the opening, receiving injuries, and brought this action against the defendants to recover for his damages.

This case has been before this court on a former appeal from a judgment which was entered in favor of the defendants against the plaintiff upon a nonsuit granted at the circuit. -

The judgment was reversed and a new trial granted, the court holding that there were questions of fact which should! have been submitted to the jury. The decision thus made is reported in 31 ’ St. Rep., 40. That decision substantially disposes of the questions presented by this appeal. Upon the retrial like testimony was introduced as on the first trial, the case was submitted to the jury, and they found a verdict for the plaintiff against the defendants for $200.

The evidence tended to show that the defendants’ employees opened the door covering the hole in the sidewalk on the night in question, and left it in the position it was at the time the plaintiff came in contact with it. The plaintiff testified that after falling over the door he looked down the passage-way and saw one or two men moving about in the cellar; that they had in hand, an ordinary globe lantern, lighted; he did not know who they were.

The defendants had at the time in their employ two engineers by the names of Henry and Sibley Owens. They were accustomed, in the evening after the place of business of the defendants was closed, to open the door in the sidewalk for the purpose of going into the basement to look after the engines. The lid or flap when not in use was kept locked; the engineers had the keys. They were .the only persons who were accustomed to use this passage-way into the basement They were both sworn°as witnesses upon the trial. Sibley Owens testified that be left the basement that night at six o’clock, leaving his brother Henry in the boiler-room. Henry testified that he left the building a few minutes after seven o’clock on the evening of the day in question; that his brother had already left, and he was the last man out. That he himself went out at the door and shut and locked it The-case fails to show who the persons were that the plaintiff saw in the basement, unless it was one or both of the engineers.

The appellants’ counsel contends that there was not sufficient, evidence that the defendants’ employees opened the door on the-night in question to warrant submitting that question to the jury, and suggests that the persons seen by the plaintiff may have been burglars. The conduct of the engineers was in question. If in fact they opened^ and left the door in the condition stated, they were guilty of gross negligence; their veracity as witnesses was,, therefore, for the consideration of the jury.

If burglars entered the building on this occasion, it is quite improbable that they would, while searching the premises, have left, the door open. If they had entered and left the door open it is still more improbable that they would have had with them a lighted globe lantern, exposing themselves and their doings to the-view of people passing along the sidewalk. If the premises were burglarized that evening, the burglars would probably have left, some evidence of their visit about the building.. The plaintiff testified that the accident occurred about seven o’clock, perhaps shortly after seven.

The jury evidently came to the conclusion that either Sibley Owens, in leaving the basement at six o’clock, unintentionally omitted to close the door after passing out, or that Henry Owens-left it open, and that the one who did leave it open, rather than subject himself to censure, chose to deny that he left it open, or that he believed he closed it when in fact he did not. If the defendants’ employees did, in fact, leave the door open, the defendants, it must be conceded, were guilty of negligence. We think the preponderance of evidence tended to show that one of the defendants’ engineers negligently left the door open and caused plaintiff’s injuries.

The question of the plaintiff’s negligence was properly submitted to the jury. We find no errors justifying a reversal of the judgment The judgment and order appealed from should be-affirmed:

Dwight, P. J., and Macomber, J., concur.  