
    SWINARTON v. LE BOUTILLIER.
    
      N. Y. Common Pleas, General Term;
    
    
      April, 1894.
    1. Negligence ; liability of storekeeper for mischievous act of employee.} The proprietor of a store extends an implied invitation to customers to enter his premises, thus authorizing and inducing them to confide in the good conduct of his servants, and thereby assumes the duty, by the exercise of reasonable care, of protecting them from injury by the misconduct of such servants ; and he is answerable for any injury sustained by such-misconduct, which, in the exercise of reasonable care, he might have prevented.
      
      —So held, sustaining a recovery by a customer for ' the loss of an eye, resulting from the mischievous snapping of a pin by a cash boy, where the habit of so doing had existed for months, and no reasonably sufficient precaution had been taken to suppress the practice.
    2. Witness ; cross-ex a m ination.} A statement of a witness to a third person, not part of the res gestae, and not tending to impeach his testimony in chief, is incompetent on cross-examination.
    Appeal by defendant from a judgment in favor of plaintiff, rendered upon a verdict.'
    The action was brought by Anna E. Swinarton against George Le Boutillier to recover damages for personal injuries sustained by plaintiff, while in defendant’s store as a customer, from the snapping of a pin by a cash boy, which pierced and put out her eye.
    The facts are fully stated in the opinion.
    
      J. Delahunty for appellant.
    
      Hatch & Wickes, for respondent.
    
      
      See note on liability for injuries received on defendant’s premises, in 24 Abb. N. C. 181.
    
   Pryor, J.

The ground of an action for negligence is the breach of a duty owing by the defendant to the plaintiff. To sustain such action it is incumbent on the plaintiff to show the duty and to prove its breach, with a consequent injury to himself.

In the present case, that the plaintiff has suffered injury from thé- act of which she complains, and that, 'the damages awarded are not an excessive reparation for the wrong, if such there be, are not the subject of controversy. The contention is over the two other elements of actionable negligence; namely, the duty and its breach.

These essential facts a plaintiff must establish, not by a scintilla of evidence merely, but by proof reasonably sufficient to uphold a verdict in his favor.

Upon a critical review of the evidence, our conviction is that it suffices to support the facts from which plaintiff deduces the duty and the breach ; and hence, the question for.adjudication is : Do those facts show a case of actionable negligence ? In other words, can it be affirmed of the facts, as a legal conclusion, that they involve a violation of duty to the plaintiff?

It is conceded that at the time of her injury the-plaintiff was on the defendant’s premises by his invitation and for his advantage, and that she suffered the hurt by effect of a" mischievous agency operating on those premises, of which she was without notice. But this is not enough. To complete a case of actionable negligence on the theory under consideration, tlieplaintiff must go farther and show the defendant responsible for the harmful agency by proof that it exists in consequence of his want of care. Imposing authority might be adduced for the proposition that the duty of defendant was more absolute—that is, not to permit the hurtful agenc}* on his premises (Beck v. Carter, 68 N. Y. 283, 292, and citations); but we prefer to limit his liability to the absence of proper diligence in the protection of the plaintiff (Coughtry v. The Globe Woolen Co., 56 N. Y. 124; Bennett v. Louisville & Nashville R. R. Co., 102 U. S. 577).

It being settled law that an occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the presence of persons who come thereon by his invitation,"express or implied, or for any other purpose beneficial to him (2 S. & R. on Neg., § 704); the questions presented by the facts as found are: First, were the premises in an unsafe condition, in the legal sense? and second, if so, was that condition the effect of defendant’s want of care and diligence ?

Had plaintiff sustained the injur)' from a defect in the premises, or in machinery upon them, assuming negligence in kéeping them, the liability of the defendant would be beyond dispute. But here the injury was inflicted by the act of a boy with a propensity to mischief, in the employ of the defendant, and by him placed on the premises in a position to do the injury. Why does not such boy, so employed and placed, constitute a danger upon the premises as effectual for evil as a trap door, or pitfall, or a dilapidated stairway ? That the cause of the injury need not be an inanimate agency is shown by the decision in Loomis v. Terry (17 Wend. 490), where it was held, that even a trespasser may maintain an action for the bite of a ferocious dog left at large on the defendant’s lot (Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 136).

In Mallach v. Ridley (24 Abb. N. C. 172, 181) it is said that “the storekeeper invites the public to enter his premises and to subject themselves to the custody and control of his subordinates, and by parity of reasoning’’ (with that prevailing in common carrier cases) he should be held responsible for the brutalities of such subordinates, even when they are not committed in the strict line of their employment.”

In Dean v. St. Paul Union Depot Co. (37 Am. & Eng. R. R. Cas. 360) the court said that “ the defendant was bound to use ordinary care and diligence to keep its premises in a safe condition for those who legitimately come there. It had no more right, therefore, to knowingly and advisedly employ, or allow to be employed in its depot building, a dangerous or vicious man than it would have to harbor a ferocious or savage dog, or to permit a pitfall or trap into which a passenger might step as he was passing to or from his train¡”

The case at bar may be new in the instance, but not in the principle ; and in the absence of authority to the •contrary, upon the analogies of the law and the dictates •of common sense, we adjudge that the presence of the boy on the premises, with his propensity to evil-doing, .was a danger against which it was the dut}T of the ■defendant, by the exercise of proper care, to protect the plaintiff.

We hold, furthermore, that having invited the plaintiff into his store for his benefit, and having authorized and induced her to confide in the good conduct of his servants, to whom in the transaction of his business he committed her, he thereby assumed the duty, by the ■exercise of reasonable care, of protecting her from injury by the misconduct of such servants; and that he is answerable to her for any injury she has sustained by such misconduct, which, in the exercise of reasonable care, he might have prevented.

The verdict involves the fact of his failure in the exercise of the duty so incumbent upon him (Sutter v. Vanderveer, 122 N. Y. 652, 654), and we are to inquire whether the evidence suffices to justify the finding of the jury.

The proof is ample to authorize these inferences; that the defendant kept in his store a number of “ cash boys ” for attendance on customers ; that among these boys the propensity and habit of “ snapping pins ” at objects and persons in the store were prevalent; that this snapping or shooting pins by these boys was likely to inflict injury on defendant’s customers, and did, in fact, inflict the injury of which the plaintiff complains ; that this habit of snapping or shooting pins by these boys had existed for months, and was known or ought to have been known by the defendant; that no reasonably sufficient precaution was taken by him to suppress the dangerous practice; and that he had not exercised a reasonable degree of care and diligence to secure the plaintiff against injur)' from such dangerous practice.

Such being the duty of the defendant and its breach to the injury of the plaintiff, and no contributory negligence being imputed to her, the right on her part to reparation in damages for the wrong, is clear and incontestable.

We are further of the opinion that plaintiff’s cause of action is so supported by the proof, that the court is not at liberty to set aside the verdict as against the weight of evidence (Nelson v. R. R. Co. herewith decided). Hence, the judgment must be affirmed; unless the exception to the refusal to dismiss the complaint be valid, or there be prejudicial error in the charge, or in the admission or exclusion of evidence.

On the conclusion of the plaintiff’s case, and again at the close of all the evidence, the defendant moved to dismiss the complaint on the ground that the cause of action pleaded was unproved. But it is obvious, on inspection of the complaint, that it proceeds as well upon the duty of the defendant to protect the plaintiff from danger on his premises, as upon his duty to secure-her against, injury by his servants in the course of their employment. The court, also, put the caseto the jury on the same theory. To the charge itself no exception was taken; and, indeed, it was unexceptionable.'

Three requests called upon the court to charge that there was no evidence to support specific propositions of fact. On a motion to non-suit or dismiss, it is undoubtedly the duty of the court to determine what the evidence is ; but submitting the case to the jury, it is a question whether the court may rightly instruct them that there is no proof of a particular fact. That matter being already decided by the judge, the deliberations of the jury are conducted on the assumption of some evidence of every essential fact; and their function is only to determine the sufficiency of the evidence. However this may be, there was adequate evidence of the facts suggested by appellant; and so, his requests were properly denied.

The other requests proceed on the supposition that no recovery could be had unless the injury to plaintiff was caused by a servant in the line of his employment; whereas, it is already apparent in this opinion that his liability stands well upon another and different principle of law.

The vicious habit of the boys was admissible in evidence, both as a substantive fact in the cause and as affecting defendant’s knowledge of the danger incurred by plaintiff on his premises.

A statement of a witness to a third party not of the res gestae; and not tending to impeach his testimony in chief, is clearly incompetent even on cross-examination. If, however, there was error in the exclusion, it was harmless, because of the introduction of the statement at a subsequent stage of the trial.

Similarly, the error, if any, in allowing the question to plaintiff’s superintendent was innocuous, because the answer was in favor of the defendant. Besides, no ground of objection was specified.

Evidence by the plaintiff explanatorjr of her procrastination in bringing suit we are not at liberty to condemn as immaterial, since in his brief before us appellant carefully inserts the statement that “ this action was commenced three days before the day on which it would have been outlawed.” If the fact of the delay be deemed of effect upon us, it could hardly have been without influence with the jury.

In the absence of error in the record we affirm the judgment.

Judgment and order affirmed, with costs.

Daly, C. J., and Bischoff, J., concurred.  