Weinhold v. Acker — 49 N.Y. Super. Ct. 182

Majority

p. 182

MARGARETHA WEINHOLD, Respondent, v. DAVID D. ACKER, et al., Appellants.

Headnote

Negligence—use of door under hatchway in store Try customer.

Where it appeared that plaintiff and other customers of defendants had been in the habit, with defendants’ permission, of using a certain door in their place of business for exit and . entrance, which door was obviously intended for the transfer of freight, etc., and not for the use of customers, —in an action by plaintiff to recover damages for injuries caused by the falling of a hogshead through a hatchway above said door while plaintiff was entering the store, defendants are not entitled to have the jury charged that plaintiff, in entering by said door, took all risk of so doing. By giving such permission, defendants assumed a duty to plaintiff of protecting her from negligence.

The question whether permission was given by defendants'so to use said door, is presented to the jury by evidence that prior to the happening of the accident, it had been used by plaintiff and others for exit and entrance.

Where, in such case, the evidence shows that immediately before entering said door, plaintiff was met by one of defendants’ employees, who told her in a loud voice and with an excited manner and pushing her slightly, not to enter, defendants are not entitled to a charge that, “if the jury believe that plaintiff was directed by an- employee of defendants not to enter said door, and through heedlessness or inattention she did not hear what was said to her, or hearing it disregarded the warning, the defendants are not liable.” First, because the request implies that it was enough if said person were an employee, though plaintiff were ignorant of the fact; and second, because plaintiff, in either event, is not, under the circumstances, chargeable as matter of law with want of due care.

Before Sedgwick, Ch. J., and O’Gorman, J.

Decided April 9, 1883.

Appeal from a judgment rendered in favor of plaintiff for $600 damages and costs, and from an order denying defendants’ motion for a new trial on the minutes.

The facts appear in the opinions.

Stephen A. Walker, for appellant.

Henry Bischoff, Jr., for respondent.

—This is an action to recover damages from an injury to plaintiff by reason of alleged negligence of the defendants, on December 22, 1880. The plaintiff, a customer of the defendants, in the act of entering their store in Chambers street, by a side door in College place, was struck by a large hogshead which fell through an open hatchway from an upper floor. Much testimony was taken at the trial both as to negligence on the part of the defendants, and contributory negligence on the part of the plaintiff, and it was submitted fully and fairly to the jury by the trial judge.

The requests to charge made by the defendants’ counsel were either unnecessary, the judge having in effect charged in his own language as requested, or were not sustained by the evidence. No error has been committed.

The judgment should be affirmed, with costs, and the order appealed from affirmed, with $10 costs.

—I agree that the judgment should be affirmed.

The request of defendants’ counsel which the court refused to charge, viz., that if the plaintiff entered the store through an entrance apparently not designed for the use of customers of the store, but obviously intended for the shipment and transfer of freight in the carrying on of defendants’ business, the plaintiff assumed the risk of so doing and cannot recover, were not absolutely correct, under the circumstances of the case as the jury were at liberty to find them. For, if plaintiff and other customers of the store, had been in the habit of using the door referred to, for exit and entrance, with the permission of the owner, then the mere appearance of the door, being for the shipping of freight and not for customers, would not be tantamount to a direction of the owner to the plaintiff not to enter. The actual, although implied, permission to usé, as a customer, would be a modification of such á supposed direction, and would entitle the plaintiff, if she entered, to protection against negligence. The testimony of the

Concurrence

p. 184

plaintiff that she and other customers of the store had before gone in at the door, presented a question for the jury; as to whether such use had not been with the permission of the owner.

The court also refused to charge as requested for defendant, “that if the jury believe that plaintiff was directed by an employee of the defendants not to enter the door, and through heedlessness or inattention, she did not hear what was said to her, or hearing it, disregarded the warning, the defendants are not liable.” The testimony shows that the direction or warning referred to was given, if at all, as follows: Hamlin, a servant of defendants, was about to go in the door, when he was told of and then saw, the danger from the cask that was jammed in the .hatchway. He stepped out and shut the door. He saw the plaintiff approaching the door. He said : “ Look out, get back, don’t go in there,” and “ I pushed her this way slightly and she jumped right away from me, acted wild and scared; and she went in spite of me, and the next moment I looked around and saw the cask on the floor and the lady on the floor. I used a pretty loud tone of voice. I was excited a little, thinking that I might have got hurt.”

I do not think that as matter of law heedlessness, taking the meaning of that word as it could only be applied to the facts of the case, or inattention or disregard, would show negligence on the part of the plaintiff. Why, as matter of law, should ordinary prudence call upon her, to obey a direction or warning, as such, of a person, not known by her to be an employee, or who at least, in the course of due care on her part, would have appeared to be an employee ? As matter of law, it is not a want of due care, to heed or attend to or disregard, the direction or warning of an excited man in the street, whose appearance and situation do not necessarily imply that he was an employee. The request implies that it was enough if Hamlin were an employee, without the plaintiff knowing or having reason to believe that he was. Again, if the plaintiff knew that Hamlin was an employee and did hear what he said, it was not

p. 185

absolutely her obligation to believe that it was dangerous for her to enter. The tones in which he spake, his own excitement, his pushing her slightly, affected her mind, as she heard and was giving attention to what he meant by his words. Taken altogether, it was a question for the jury of whether, if she had given ordinary care in hearing or heeding him, she would have known that he meant to tell her it was dangerous to enter the door. If circumstances that she did not control affected her mind, so that she did. not understand what persons ordinarily would understand, the jury might consider the fact as to the main question of whether she used due care.