
    ARCHER OYSHTERBANK, Appellant, v. WILLIAM GARDNER, et al., Respondents.
    
      Negligence.—Right to maintain hatchway—duty as to public—implied invitation to enter premises.—Highway.
    
    Plaintiff, who was nearly blind, turned from the street upon which he was walking, supposing he had reached a certain house to which he intended to go, and went up steps belonging to defendants’ warehouse, through a doorway, and fell into a hatchway close to the door.
    
      Held, that defendants, having a right to maintain said hatchway with the door, as a well known and ordinary business appliance, the burden of proof was on plaintiff to show negligence; that defendants were bound to use due care to protect from falling into the hatchway persons coming into that part of the building by their invitation, express or implied, but that the existence of such steps and doorway was not sufficient to establish an implied invitation, in the absence of evidence that the appearance of the door was like that used for the entrance of persons ; also, that plaintiff’s defective vision did not affect defendants’ obligation in the premises.
    
      Wurther held, upon consideration of the facts showing the relation of the hatchway to the street, that the case does not come within the rule permitting a recovery by a person who, proceeding on the highway with ordinary care, inadvertently steps from it into an excavation made by defendants so near the highway that such an occurrence might reasonably be expected.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided June 2, 1883.
    Appeal by plaintiff from judgment that his complaint be dismissed.
    The action was for damages from negligence. The plaintiff was a seller of newspapers. He walked along Mott street, intending to go into an eating-house on that street. His sight was imperfect; when he had gone near the eating-house, about nine feet from it, thinking that he had reached, it, he turned and went up steps that, in fact, belonged to defendants’ warehouse. He proceeded through the doorway, and fell into and through a hatchway that was close to the door.
    Further facts appear in the opinion.
    
      Peet & Fuller, for appellant.
    —Defendants gave a general license and an invitation to the public to enter ; and it was their duty either to keep the entrance in a safe condition or to give warning of danger therein; and if they omitted to perform this duty they are liable for the consequences (3 Bl. Com. 2111; Sweeny v. O. C. & N. R. R. Co., 10 Allen, 369; Elliott v. Pray, 10 Id. 379; Corby v. Hill, 93 E. C. L., 4 C. B. [N. S.] 556; Beck v. Carter, 68 N. Y. 283; Swords v. Edgar, 59 Id. 31; Mayor, &c. v. Williams, 15 Id. 502; Mullaney v. Spence, 15 Abb. Pr. N. S. 323, and cases cited; Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 C. B. 417; Sher. & R. on Neg. § 508).
    Plaintiff was not guilty of contributory negligence, and therefore defendants owed him this duty as one of the public. Although plaintiff,because of his mistake, might be regarded as a technical trespasser, yet that would not deprive him of his rights nor release defendants from their duty (Brown v. N. Y. C. R. R. Co., 34 N. Y. 410 ; Loomis v. Terry, 17 Wend. 500; Mullaney v. Spence, 15 Abb. Pr. N. S. 323; Barnes v. Ward, 9 C. B. 420; Whirely v. Whiteman, 1 Head Tenn. 610; Lynch v. Nurdin, 41 E. C. L. 342; Stout v. Sioux City & Pacific R. R. Co., 17 Wal. 657; Birge v. Gardner, 19 Conn. 507; Bird v. Holbrook, 4 Bing. 628; Ela v. McConihe, 35 N. H. 275). His trespass was not the controlling act, and therefore of no importance (Harris v. Ubelhoer, 75 N. Y. 177).
    
      Thornton, Earle & Kiendl, for respondents.
    —So long as the owner of property violates no duty to others, or to the State, he cannot be called in question for the manner in which he uses it; and if in the lawful exercise of his right to so use it, another is injured, he is not liable. That defendants are not liable, see Victory v. Baker, 67 N. Y. 366. Nicholson v. The Erie Railway Co., 41 Id. 525, holds the same doctrine (Also see Hounsell v. Smyth, 97 Eng. Com. Law, 731; Thompson v. Grand Trunk Railway Co., 37 U. C. Q. B. 40; Pierce v. Whitcomb, 48 Vt. 127, 21 Am. R. 120; Severy v. Nickerson, 120 Mass. 306, 21 Am. R. 514; Bush v. Brainard, 1 Cow. 78; Sutton v. N. Y. C. & H. R. R. Co., 66 N. Y. 243; McAlpin v. Powell, 70 Id. 126; Ill. Central R. R. v. Godfrey, 71 Ill. 500, 22 Am. Reps. 112; Gramlich v. Wurst, 86 Penn. St. 74, 27 Am. Reps. 684; Morrissey v. Eastern R. R. Co., 126 Mass. 377, 30 Am. R. 686).
   By the Court.—Sedgwick, Ch. J.

—The burden of proof was upon the plaintiff to show negligence on the part of defendants. They had the legal right to make and maintain the hatchway in their own building. The hatchway was of an ordinary and well known kind of appliance to the management of business. The defendants had a right to suppose that anyone entering their store would expect to find the hatchway in the place where it was. They were bound to use due care to protect from the risk of falling through the hatchway anyone who should come into that part of the building by their invitation, express or implied.

The plaintiff claims that he did enter by implied invitation. To succeed on this point, he must prove the facts from which the invitation may be implied. The only facts he proves are, that there were steps leading to the' door, that there was the door, and the hatchway a short space within the door.

As we have before said, it is generally known that there are doors for the uses of hatchways, and it is as well known that there are other doors for the entrance and exit of persons on business. The mere fact that there are doors leading to hatchways does not give an invitation to enter, unless it is also shown that the appearance of the door and door-way is like that of those generally used for the entrance of persons. In this case there was no proof of what the appearance of the door and door-way was. To assume that it was such as would justify a person believing that he might enter, would be to assume, and not to prove, that the defendants were negligent.

Unhappily, the plaintiff was nearly blind, and for that reason could not, or did not, observe the appearance of the door and door-way. But I apprehend that this blindness did not increase or lessen the duty of the defendants in the matter now in view. The plaintiff had no right to enter the defendants’ house, without the permission or implied invitation of defendants; and defendants had the right to exclude such as they did not, in fact, permit to ehter. Whatever, then, the condition of the plaintiff, he knew he had no right to enter, unless, in fact, there was an appearance of invitation from the defendants; and in making his case on the trial, he did not show any facts that tended to prove an appearance of invitation. The proof was, that the plaintiff did not inadvertently even go up the steps, but entered intentionally, because of a mistaken calculation as to the distance he had gone. This, again, does not affect the measure of the defendants’ obligation to duly protect such persons as were on their premises, in the vicinity of the hatchway, by their consent. So far as the plaintiff’s claim was placed upon his being invited to enter the door-way, the proof failed to show that there was an invitation.

The plaintiff’s claim was also placed, in the argument of the appeal, upon the relation of the hatchway to the street or highway. The foot-step leading to the door-way was eight feet distant from the curb. There were two steps up ; then a flat stone about four feet wide, and then one ocher step to the door-way. The hatchway was close to the door. These facts show that this case is not within the rule that permits a recovery by a person who, proceeding on the highway, with ordinary care, inadvertently steps from it into an excavation made by the defendants so near the highway that the latter might reasonably anticipate such an occurrence. The departure by the plaintiff from the street was intentional, and it was his purpose to enter a house. The defendants were not bound to provide against an intentional use of their premises, which had not been permitted by them, as we have already held.

In view of these considerations, it may be said, as to the plaintiff’s participation in the occurrence, that being a business part of the city, where doors with hatchways having access from the street are frequent, and doors for the entrance of persons are frequent, he had no right to assume that because there was a door, it was of the latter kind.

Judgment affirmed, with costs.

Ingraham, J., concurred. 
      
       See Weinhold v. Acker, ante, p. 182.
     