
    Mary T. Larken, Resp’t, v. Hugh O’Neill, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Negligence—Duty of store-keeper to keep stairs in store free from obstructions.
    The plaintiff was in the defendant’s store for the purpose of purchasing certain merchandise, which he had for sale. In proceeding from one part of the store to another, the plaintiff was obliged to go down stairs, and in so doing she fell and was injured. The side of the stairs was obstructed by display figures placed upon the steps, preventing her from reaching the balustrade or rail. While in the act of taking the second step and trying to reach the balustrade, she encountered the fall resulting in the injury complained of. Held, that the obstruction of the steps preventing persons from using the balustrade and securing their safety by the use of it, was an act of carelessness on the part of the defendant. That it was the duty of the defendant to maintain and preserve the stairs in such a manner as to render them reasonably safe for the use of liis customers.
    2. Same—Evidence—Competency.
    It was competent to show the fact that other persons had previously fallen upon the stairs in the same manner in passing from the upper to the lower of the apartments. This evidence was admissible to prove that the stairs were unsafe and that the defendant had been made aware of their insecure condition by these accidents.
    3. Same—Contributory negligence—When a question of fact.
    There was nothing to indicate that with the use of care and caution on the part of plaintiff, she would not be able to descend these stairs without injury. The fact that the effort to do so would be attended with some danger, Held, not of itself to charge her with such want of care as would prevent her from maintaining the action. That whether it was careless to attempt to pass down the stairs was a question for the jury.
    Appeal from a judgment recovered on the verdict of a jury and from an order denying a motion for a new trial.
    
      Abraham Kling, for app’lt; Ira Leo Bamburger, for resp’t.
   Daniels, J.

The recovery in the action was fpr damages sustained by the plaintiff in consequence of a personal injury happening to her by falling down the stairs in the store kept by the defendant on Sixth avenue in the city of New York, and also as the assignee of her husband for the expenses to which he was subjected for medical services, medicines and the loss of the services of the plaintiff as the result of the injury received by her. She entered the store as a customer for the purpose of purchasing articles of which the stock in part consisted. She went by the elevator in the store to an upper story, where she purchased a cloak, and being desirous of purchasing underwear, was directed by a person in that part of the store, to proceed down stairs to the room or apartment where that quality of goods was sold. After receiving this direction she proceeded to the stairs leading from the apartment where she was, into that where the underwear was kept for sale. The light in the apartment from which she was proceeding was bright, while that in the apartment to which she designed to go was much darker.

According to her testimony, which was not contradicted upon this subject, she stepped down one of the steps and then endeavored to reach the side of the stairs on which there was a rail, or balustrade. This side of the stairs was obstructed by display figures, placed upon the steps, preventing her from reaching the balustrade or rail. And while in the act of taking the second step and trying to reach the balustrade, she encountered the fall, precipitating her down stairs, and resulting in the injury which was the principal subject of complaint in the action.

Her right to recover was resisted on the ground that the proof failed to establish carelessness or negligence on the part of the defendant, and evidence was given on his behalf to the effect that the stairs had been constructed with steps of the usual breadth and heighth, and that this rail or balustrade was upon the side where it should be maintained.

But while the defendant may not have been chargeable with any omission of duty as to the manner in which the stairs had been constructed, yet it was so obstructed by the display figures as to prevent persons passing down from availing themselves of the security and protection of the balustrade, a question of negligence was presented in the case. It was the duty of the defendant to maintain and preserve the stairs in such a manner as to render them reasonably safe for the use of his customers. Ackart v. Lansing, 48 How., 374; Bennett v. Louisville, etc., R. R. Co., 102 U. S., 577; Carleton v. Franconia, etc., Co., 99 Mass., 216.

The object and design of placing the balustrade or rail upon the side of the stairs was to render them safe and useful for persons having occasion to pass over them in the cause of their business at the store. That was no more than a necessary or reasonable precaution. And placing the balustrade there was a practical concession of its necessity for the protection of persons using the stairs. And it followed that the obstruction of the steps preventing persons from using the balustrade and securing their safety by the use of it, was an act of carelessness on the part of the defendant.

It is true, these figures were placed upon the steps by persons in his employment and not by himself, but they were his servants, aiding and assisting him in carrying on his business, and for what they did in this manner the defendant himself became legally responsible. That the use of the balustrade was necessary for the protection of persons passing down the steps was not only exhibited by the fall of the plaintiff, but by the fact that other persons had previously fallen upon the stairs in the same manner in passing from the upper to the lower of the apartments. This evidence as to what had previously occurred was objected to, but the objection was not well taken, for these preceding accidents were admissible in evidence as proof of the fact that the stairs were unsafe, and that the defendant himself had probably been made aware of their insecure condition by these accidents. Similar evidence was received in Quinlan v. City of Utica (11 Hun, 217), and in Guilladen v. Coast Wrecking Co. (18 Weekly Dig., 303). This part of the case was, therefore, sufficiently made out by the evidence to submit it to the jury.

It has, however, been argued that the plaintiff, herself, failed to observe that degree of care which was to be expected and exacted on her part, and that the case on that account should not have been submitted to the jury. And the court was also asked to instruct the jury that if the plaintiff could have gone back after she observed the obstructions on the stairs, or could have gone down the stairs another way, they should find for the defendant. But the appearance of danger and insecurity was not so decided certainly as to the charge the plaintiff with a want of care in endeavoring to pass down the stairs as she did. It was the ordinary passage way from this upper to the lower-department, and was provided for and made use of by the customers in the store who desired to go to the apartment where the underwear was sold. And she, herself, appears to have been directed by one of the persons in the upper department to take this avenue for the purpose of reaching the lower department where she would find the underwear. And her testimony was further to the effect that she could not go to this underwear department by taking the elevator, and she evidently believed herself capable of passing down the stairs without incurring the risk of any serious accident, and would probably have done so had it not been for the obstruction caused by these figures standing upon the steps. Her evidence, which the jury had the right to credit, indicated that she endeavored to pass cautiously and carefully down the steps, and to avail herself of the protection of the balustrade as far as that might be possible, but she failed in her effort to do so. There was no fact aside from the inability to reach the balustrade because of the positions occupied by the display figures that would lead her to suppose that she could not safely pass down the steps. And by the use of care and caution on her part she could still very reasonably believe that she would be able to go by means of the stairs from the upper to the lower department without any unavoidable risk to her personal safety.

The fact that the effort to do so would be attended with some danger, would not of itself charge her with such want of care as would prevent her from maintaining the action. The case would still be subject to the inquiry, whether the act of attempting to pass down the stairs, was or was not, careless or negligent, and that upon the facts appearing it was for the jury to determine.

In the case of Niven v. City of Rochester (76 N. Y., 619), an injury was received by the plaintiff’s wife, by stepping into a hole in one of the sidewalks of the city. This sidewalk had been out of repair and was conceded to have been notoriously; in bad condition since the early part of the spring, while the accident took place in the evening of the fourth of July. She had before passed over the sidewalk and knew it was in bad condition, but did not know of the hole into which she stepped. At the time of the accident her mind did not seem to be on the condition of the walk, but she was walking carefully and picking her way, and it was held by the court that the question of the exercise of proper care on her part under these circumstances, was for the jury.

The case of Weed v. Village of Ballston (76 N. Y., 329), proceeded upon a similar state of facts. There the excavation, which caused the injury, had continued so long as to become notorious, and while the plaintiff had previously known of its existence it was still held that it was for the jury to determine and decide whether he should be charged with carelessness for driving along the street in the night-time, and receiving an injury from the excavation.

The same principle was followed in Bullock v. The Mayor, etc. (99 N. Y., 654), in which the court held that the plaintiff had the right to use and pass over the sidewalk, although she knew it was in an unsafe condition, without being necessarily charged with negligence or omission of care on her part.

In Palmer v. Dearing (93 N. Y., 7), the injury was caused by a broken spot in the oil cloth covering the stairway leading from the second story to the hall below over which the plaintiff had frequently passed, and yet it was held by the court that she was not necessarily chargeable with negligence, because of her knowledge of the condition of the stairway, but that whether she exercised reasonable care or not was for the jury to decide. And in making that decision the jury are in all cases entitled to consider the circumstances attending the occurence, and if from the circumstances the inference is supported, that reasonable care was observed, the action may be maintained. Tolman v. Syracuse, etc.. Railroad Company, 98 N. Y., 198.

The verdict here was so far supported by the evidence as to exclude the right of the court to set it aside. Both as to the accident and the damages recovered, they had sufficient proof to sustain their conclusion, and neither of the decisions of the court to which exceptions were taken, can be held to have been erroneously made.

The judgment and the order should, therefore, be affirmed.

Van Brunt, P. J., and Bartlett, J., concur.  