Boyce v. Brewington

BICKLEY, Justice. This action was instituted by plaintiff (appellee) to recover damages for personal injuries to her, alleged to have resulted from the actionable negligence of defendant (appellant). The defendant denies • that the injuries to plaintiff were caused by, or resulted from, her negligence, and asserts that plaintiff’s own negligence proximately contributed to, and caused her injury. From a judgment following a jury verdict for plaintiff the defendant has prosecuted this appeal. The questions are, (1) whether there is substantial evidence to support the charge of actionable negligence; and, (2) if so, whether the plaintiff by her own negligence contributed to her injury. The facts are substantially as follows: The defendant, the owner of certain residence property in the city of Albuquerque, listed it for sale with a real estate broker. The plaintiff, desiring to purchase a house, contacted a representative of the broker, who took her and her three daughters to inspect this property with the purpose of selling it to her. They entered the house at the rear through a french door that opened into a breakfast room, or service porch, 8x8 feet. In addition to the french entry door, there were four doors opening from this room; one opened into the kitchen, another into a bedroom, a third from a pantry and the fourth covered the entrance to a basement stairway. The kitchen, bedroom and basement doors opened outward from the-breakfast room. The floor level of the breakfast room did not extend beyond the door of the basement stairs. There was no landing inside the door but immediately inside was a drop of 9 inches to the first step of the stairway. The risers of the basement steps (eight in all) were 9 inches high and the treads 8% inches wide. There was a wall part way down the stairs on one side; on the other there was no protection against falling. The basement and stairway were not well lighted. The five doors in the breakfast room were all finished alike in color. There was nothing on the basement door to indicate danger, or that it was a basement door. While in the breakfast room a daughter of plaintiff opened the basement door and saw that it covered a basement stairway. The agent closed it, remarking that it was> dangerous. Plaintiff did not see this, or hear the conversation; but she had been informed there was a basement under the house. The party passed through one of the doors into the kitchen, then through the dining room into the living room. The plaintiff, a few minutes later, left the others in the living room, to look for a bedroom. She returned to the breakfast room, opened the basement door (which was not fastened or locked), and thinking she was entering the bedroom for which she was looking, stepped into space, fell down the “basement stairs to the floor and was severely injured. That the plaintiff was a business invitee is assumed. We assume also that the invitation extended to an inspection of the •entire house, including the basement; and it did not require her to inspect only such portions as might be shown by the agent. It included the right to independently inspect all or any part of the premises. Whether plaintiff had the right to ignore the guide and dispense with information thus made available, it is not necessary to ■decide. The rule is that the owner of a building who invites another to inspect it with a view of selling the property to the ■invitee, is charged with the duty of using •ordinary care in having the premises in a reasonably safe condition for inspection; and if there are concealed dangers unknown to the invitee, but known to the •owner, or which by the use of ordinary •care he should have known, the duty extends to giving the invitee notice thereof. We fail to perceive evidence establishing actionable negligence of the defendant, •but since our conclusion rests more particularly upon another ground we deem it ■unnecessary to discuss the weakness of the plaintiff’s case in regard to alleged negli.gence of the defendant. The evidence is uncontradicted that the plaintiff when inspecting the property found the door to the cellar or basement closed. The door opened inward and we find the plaintiff standing at the entrance of a cellar door; no lights, bar or barrier are about the flight of steps; the natural light is inadequate; she is inspecting the house with a view of buying it; the darkness confronting her when opening the door to the cellar or basement was sufficient notice to warn her of dangers she was unable to see. The failure of the plaintiff to exercise ordinary care for her own safety when opening a closed door and taking a step forward into an unlighted stairway, thereby contributing to her own injury, as a matter of law will preclude a recovery on her part under the evidence in this case, and it was error for the trial court to refuse to direct a verdict in favor of defendant. In Dominguez v. Southwestern Greyhound Lines, 49 N.M. 13, 155 P.2d 138, we held upon evidence at least as favorable to plaintiff as in the case at bar that the trial court should have sustained defendant’s motion for an instructed verdict. For the reasons stated, the judgment is reversed and the cause remanded, with direction to set aside the judgment heretofore rendered and entered, and to enter judgment for appellant. And, it is so ordered. MABRY, C. J., and LUJAN, J., concur. BRICE and SADLER. JJ., dissent.