
    Elias Wasson, Resp’t, v. John Pettit, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 1, 1889.)
    
    1. Negligence — Open area.
    Where plaintiff has chosen to base his action upon a charge of direct negligence of defendant in allowing certain steps leading to an area hired by a tenant to be uncovered, and it is shown that defendant had placed a substantial iron grating over the place, which had to be lifted in order to enter, with a watchman on duty day and night, and that the grating was removed while the watchman was on his round, defendant is entitled to a non-suit, and the submission of the case to the jury on the question of negligence is error.
    2. Same.
    In all cases where it is sought to hold the owner of property liable for injuries, occurring to a stranger, on the ground of negligence, there must be evidence in the case that he was guilty of some acts of omission or commission, from which a jury might reasonably infer fault on his part,
    Appeal from judgment of supreme court, general term, first department, affirming judgment for plaintiff entered on verdict of. jury and order denying motion for new trial.
    
      Treadwell Cleveland, for app’lt; Lewis J. Conlan, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 778.
    
   Gray, J.

The defendant in this action has appealed from a judgment, entered upon the verdict of a jury, by which he is held in damages for injuries occasioned to the plaintiff by falling down a flight of steps leading from the sidewalk of the street into the cellar way of a building.

The complaint charged that these injuries were caused solely through the negligence of the defendant in permitting that j>art of his premises to remain unprotected and in an unsafe and dangerous condition.

The proof established the following state of facts: The plaintiff was- walking by the defendant’s building on the north side of Thirteenth street, between ¡Ninth avenue and Hudson street, in the city of ¡New York, on a Sunday morning in June, 188-f. When opposite to the flight of steps, he stepped to one side to pass by some men, who were standing at that point of the sidewalk. He attempted to pass between them and the building, and in so doing fell down the steps. His eyesight was defective, and that may have accounted for his failure to observe the cellar opening. But whether it was or not is immaterial, in the view I take of the case. The building had come into the defendant’s possession within the previous six months, and covered the block. Around it was an open area separating it from the street. The steps in question led from the sidewalk of the street into this area and so into the cellar of the building.

This cellar had been leased by the defendant, and the tenant was in possession and actual occupation. The lease was in writing, and gave no right to defendant to use that part of the premises, or the steps in question. The building had been undergoing repairs and alterations at the defendant’s hands, but they had been completed in this particular part, except that certain wooden doors to guard the entrance by this flight of steps had not yet been completed and put up. Temporarily the defendant had furnished and put over the opening an iron grating, weighing some 150 pounds, which extended from the upper step of the flight to the wall of the building, at an angle. In order to gain access to the tenant’s cellar, this iron work had to be lifted up and removed. The flight of steps was an ordinary one, and had been there for years. A watchman was employed by the defendant to watch the outside of his building, and he was examined in behalf of the plaintiff. His instructions were, among other things, to see that this iron cover to the cellar way was kept in place. On the morning in question it ¡had been securely in place, but while the watchman was on his round, and before his round was completed, some one removed it, and it was out of place when the plaintiff came by. This flight of steps extended into the sidewalk, and beyond the railing of the area about eighteen inches, but this feature is not to be considered as involving any particular consequences.

The complaint did not charge the defendant with maintaining a nuisance, and the trial did not proceed upon any such theory of liability. In fact the learned judge, who presided at the trial, charged the jury that the plaintiff had chosen to base his action upon the charge of direct negligence, and not upon that of maintaining or continuing a public nuisance, and he left it to the jury to say whether the accident was caused exclusively by the negligence of the defendant, or by those who were acting for him.

In this the plaintiff acquiesced, and he is in no position to argue now, in support of his judgment, on the theory that the defendant was maintaining a nuisance.

If that question was not raised at the trial, it certainly is no time to present it when the case is here upon appeal. The judgment must stand upon the case as it went the jury upon the trial of the issue.

The question which now presents itself is raised by the exception of the defendant to the denial of his motion for a non-suit at the close of the case. I am unable to see that there was any question of fact to be submitted to the jury. By numerous authorities the principle is established that in order to justify a submission to the jury, in such au action as this, the case must have some evidence showing, or fairly tending to show, some wrongful act or neglect of the defendant, or some omission of a duty which lie owes to the public. For no cause of action arises against the defendant for negligence, unless he has violated some legal duty resting upon him to exercise care with respect to the use or enjoyment of his property.

Now, in what respect has the defendant been shown to be in fault in the present case? There was no conflict in the evidence, direct or indirect, and it does not appear that he could have acted any more carefully or prudently towards preventing such an accident, under the circumstances.

He was not in possession of the premises and had no control over them. He did undertake to watch the outside of the building, and in' performance of that undertaking placed a substantial iron grating over the cellar entrance, of such a nature that to enter one had to lift it up and to one side; and a watchman was on duty day and night to see that the grating was in its proper place. The employment of a watchman devolved no greater responsibilities upon the owner than he was already under in legal contemplation. The watchman’s duties were not those of a janitor and had no relation to the maintenance or care of the building, nor further than as testified to. He policed the outside of the building and he was instructed to watch this temporary covering to the tenant’s cellar entrance.

This covering was removed when the watchman’s back was turned and he was on his round. The defendant did not authorize and he did not know of its removal nor did he have any notice of it; and, of course, could have had none, for it was suddenly done. It is reasonable to presume that it was taken up by the occupant, or by one of his servants. If the cover had remained as it was through the night and in the morning previous to the time of this occurrence the accident could not have happened. The defendant is not to be deemed liable for the consequences to a stranger of the wanton or careless act of. some other person not in his employ. He was shown to have done all that a careful man could have done to guard the approach to the tenant’s premises, pending the completion of the permanent doors, which he was to furnish. Unless he, or some one for him, had stationed himself through all the hours upon the steps, I do not see what more could have been done. The occurrence was one which might as well have happened had the permanent doors been on and the tenant, or his servants, had left them open.

In the view of the general term as expressed in their opinion, though it was conceded that there was no direct conflict of evidence, it was held that there was a conflict arising “from the very circumstances of the happening of the accident ” as to the manner in which the opening was guarded. But that is a mistaken view of the proof. There is absolutely nothing to show that any moro effective device could have been adopted under the circumstances of the case. The closest sifting of the evidence leaves no residuum out of which the jury could fairly extract any inference of neglect on the defendant’s part. This is a case where the law can grant no relief to the plaintiff against the defendant; for the only ground is, in reality, that he is the owner of the premises.

In all cases where it is sought to hold the owner of property liable for injuries, occurring to a stranger, on the ground of negligence, there must be evidence in the case that he was guilty of some act of omission or commission, from which a jury might reasonably infer fault on his part. Nothing less than that will satisfy the demands of the rule of law in such cases. The law is reasonable, and does not demand of an owner of property more than the exercise of ordinary care with respect to the rights of third persons. A reference to such recent cases as Wolf v. Kilpatrick, 101 N. Y., 146; Edwards v. R. R. Co., 98 id., 245, and many others, some of which are cited upon the brief of the counsel for the appellant, will show that it would be a violation of well established rules of law to allow juries to determine upon mere surmise and conjecture as to the. existence of negligence on the part of a defendant. The evidence must fix or tend to fix upon a defendant, in such cases, some personal fault, or its equivalent, to warrant a submission of the question of liability to the jury.

These views lead us to the conclusion that it was error in the trial court to deny the defendant’s motion for a non-suit’ and, for that error, the judgments below should be reversed and a new trial granted, with costs to abide the event.

All concur, except Ruger, Ch. J., and Danforth, J., dissenting.  