
    
      Ed. Freer and Wife vs. G. & H. Cameron.
    
    Action on the case sustained against defendants, who were store-keepers, by a plain.tiff, who, being in the store'as a customer, was invited by the clerk to walk into a ■dark part of the store, in which there was an open trap-door, through which plaintiff, without negligence on her part, fell, and fractured her arm.
    
      In the City Court of Charleston, May Term, 1850.
    This was an action on the case to recover damages on account of an alleged injury to Mrs. Freer, from the negligence of the defendants.
    'The testimony was as follows:
    
      Mrs. Ann Henlin. — Witness lives on James’s Island; so do Ihe plaintiffs; was in the city in November, 1847, in company With. Mrs. Freer. They went into the defendants’s crockery store in Meeting street; it was a long store; thinks it was on the 11th of November; no one in company with Mrs. Freer but witness ; went to purchase a butter dish. As she entered, asked the clerk, or person in attendance, for a butter dish; was invited to go down the store, into the back part; witness heard a crash behind her, turned around, saw a hole, down which Mrs. Freer had fallen. Mrs. Freer cried out, “Oh Lord!” The clerk helped her out. Witness, in going down the store, followed the clerk; passed the place without seeing it. Mrs. Freer was coming in rear of witness, on her side. Mrs. Freer, when she fell, exclaimed, “ Good Lord! would no one tell me about this hole ?” Witness heard no notice that there was such a place; the trap-door was off; the hole large enough to let the body of a person down. Some one said, “ Send for a doctor;” one came; Dr. Robertson, who pronounced Mrs. Freer’s arm fractured; he tied up the arm in a sling. Mrs. Freer was confined to a bed in town, at a friend’s house, and was attended by Dr. Phillips for three weeks or more; she suffered very much; had to be dressed and undressed; could not help herself.
    
      Cross-examined. — The hole was entirely open; no covering on it. The day this happened was cloudy; it was darker in that part of the store than in front; witness’s attention was directed to the clerk; saw but one gentleman there; he went down the place by a step-ladder, and got Mrs. Freer out. It was darker in that part of the store than elsewhere; saw no windows but in the front part of the store; there was room to walk beside this trap-door, had the place been pointed out or known; clerk said to witness, “Walk this way;” witness followed; he gave no notice or warning. Happened about ten or eleven o’clock.
    
      Dr. St. John Phillips. — Knows Freer and his wife; was called to attend Mrs. Freer on the 11th of November; found her left arm fractured, her side was bruised, complained of pain in her thigh and in her side; for two or three weeks she suffered much pain. Mrs, Freer is about forty-two or forty-three; the fracture of her arm a serious injury at her time of life.
    
      His Honor, the Recorder, instructed the jury that they were to determine, upon the evidence, whether the defendants, through the agency of their- clerk, acting in his lawful and ostensible character as such, had been guilty of gross negligence, in inviting Mrs. Freer to follow him into that part of the store where the accident occurred, and without giving any warning or notice of this open place. That if, in their opinion, under all the circumstances, Mrs. Freer could have avoided the accident, by the exercise of that degree of prudence which any prudent or reasonable person might be called upon or expected to exercise, in her precise position, the plaintiffs ought not to recover.
    The jury found for the plaintiffs f500. The defendants appealed, and now moved this Court for a new trial, on the following grounds:
    1. Because there was no proof offered by the plaintiffs to connect the defendants with the action, they not being present; and it is respectfully submitted that, under the circumstances of the case, they were not liable for the negligence of the clerk, even were the negligence admitted: nor was the name or identity of the person proved.
    2. Because the evidence given.by the witness, produced by themselves, was, that the occurrence took place at or about 10 o’clock in the day; that the object was palpable and visible, if she had looked to it, and because there being a want of ordinary caution on the part of the plaintiff, (Mrs. Freer,) the defendants are not liable.
    3. Because the keeping a cistern in a retired part of the store of the defendants was not an unlawful act, and it is respectfully submitted that the true principle of law is, “that if, in the prosecution of a lawful act, an accident, purely accidental, arise, no action can be supported for an injury arising from such an accident.”
    4. Because, under the circumstances of the case, the damages were excessive.
    
      Dukes, for the motion,
    cited 5 Hill N. Y. R. 282; 4 Car. & P. 262 ; 7 Mete. 274; 4 Bing. 628; 1 M.& G. 568; 11 East, 60; 6 Hill N. Y. R. 592; 3 B. & Al. 304; 5 Car. & P. 410; 2 Chit. 637; 3 Car. & P. 554; 21 Wend. 188; 19 Wend. 400; 21 Wend. 615; Cro. Jac. 158; 1 Esp. R. 203; 3 Car. & P. 528; 10 Mees. & W. 546; 7 Taunt. 479 ; 3 Wheat. 559.
    
      W. D. Porter, contra,
    cited 3 Camp. 398; 1 Salk. 289; 1 B. & P. 604.
   Curia, per

Withers, J.

The first ground of appeal questions the liability of defendants, assuming that the evidence makes a case sustainable against some one.

In all that occurred between Mrs. Freer and her companion, the only witness in this case, and the defendants’s agent or clerk, the latter was acting strictly in the line of his employment, in capacity of representative of his principals. If, therefore, he was guilty of any negligence at all, which was actionable, it must be, upon all reason and authority, such as involves the responsibility of the defendants. Nor is there any difficulty in the further objection, advanced in the same ground, that the person and identity of the clerk were not established. Whatever might be his name, or other characteristic attending him, he was a person in charge of the establishment of defendants, it must be presumed (in the absence of adverse proof,) with their knowledge and with their procurement. The evidence in this behalf must be enough to raise all the responsibilities that grow out of the relation of principal and agent.

The second ground of appeal advances the position that the conduct of Mrs. Freer manifested such degree of carelessness or want of circumspection, — an absence of such ordinary caution as, in contemplation of law, should cause her to be reputed the author of her own misfortune. We recognize the doctrine, that if a party has been guilty of fault or negligence, not wanton and intended for mischief, and another, by his own want of ordinary caution, shall suffer damage thereby, the law will not help to a recovery, for it will meet him with its own maxim, “ damnum absque injuria.” But there can be no sensible administration of these propositions in practice, unless we take into account many circumstances that may vary each particular case. The caution or prudence that we might well exact of one person, suffering damage from a particular cause, would not do justice to another, complaining of a like injury, and arising in the same way. For instance, if Mrs. Freer had known that the same incident had previously occurred to another, at the same place: if it were proved that she had a familiar knowledge of the premises: if it were in evidence that she obtruded herself with an unusual and improper freedom, instead of following the lead and invitation of the clerk, (as the testimony is,) and so forth, a jury might find in such circumstances material variations from the features of the case, as we have it. Yery substantial variations might arise from the consideration of age, since we could not demand of a child the precaution and circumspection of mature years. There is something in the very fact that the place of disaster was a store, with the usual invitation to every customer to enter, with every attraction to look upwards, and not downwards. Now who would ever dream that in such a place, in any part of it where articles were exhibited for examination and sale, an open pit was to be found, such as Mrs. Freer encountered 1 She would have had even more cause to apprehend that-an overhanging chandelier might be so carelessly adjusted as to fall upon her in the middle of the room. We cannot discover in the evidence reported anything which makes the law cited for the defendants, and not disputed, available for their protection.

It is next insisted that the defendants violated no law or right in another in maintaining a cistern in a retired part of their store; and if injury, purely accidental, resulted from such legitimate exercise of the rights of property, there is no ground for redress.

Let this be admitted. But what is our case ? It is not the cause of action that the defendants kept a cistern in one or other part of their store. The complaint is, and the evidence sustains it, that the entrance to the cellar (or cistern, if that was the structure,) was left open, from the darkness of the day, and place not readily discoverable, and that the complaining party fell in and was thereby damnified, while visiting a portion of the store, in conformity to the clerk’s invitation. Surely these facts point to culpable carelessness on the part of the defendants only. While our law encourages the full exercise of dominion over property by the proprietor,'it inculcates, in the same breath, the injunction, so use your own that you hurt not another. (Vide Leslie vs. Pounds, 4 Taunt. 649; Coupland vs. Hardingham, 3 Camp. 398.)

As to the suggestion that there was here pure accident, it is enough to say that this cannot be, where on one side there was fault and negligence producing injury.

In actions founded really upon tort, (not meaning those so in form, but in reality, quasi ex contractu,) we have no tribunal to adjust the damages, upon proof of the cause of action, except the jury. Neither in theory nor in practice is such the appropriate function of this Court.

The motion must therefore be refused.

O’Neall, Evans, Ward law, Frost and Whitner, JX, concurred.

Motion refused.  