McNally v. Oakwood

Davis, J.: The defendant, a cemetery corporation owning a large greenhouse, was doing a somewhat limited business in the sale of plants and flowers. To its premises at times came customers who examined and selected such as they desired to purchase. This they were invited to do by signs displayed offering plants and cut flowers for sale. Having made selection, customers often went to an office and workroom in the rear to pay for their purchases and to have them wrapped for carrying. This office contained a desk and tables or counter. To the right was a short passageway between the desk and wall. It led to a window where behind glass some cut flowers were standing in vases. The verdict in plaintiff’s favor permits the further statement of facts that on March 30, 1923, the plaintiff visited the greenhouse with her brother-in-law and two small boys. They selected plants and passed into the office to pay for them and have them wrapped. Plaintiff was waiting for these transactions to be concluded, when her attention was attracted by the flowers in the “ cabinet.” Desiring to examine them with an intent to purchase, she walked along the short aisle that led to them. It was somewhat dark in the room at the time, but the way appeared to her clear. She had never been there beforó. Just as she reached the point where the flowers were displayed and was about to examine them, she fell through an open trap door at the left into the cellar, receiving serious injuries. There was no guard or warning sign. [614] There seems to be no dispute but that plaintiff was an invitee upon the premises in general. The defendant, however, has consistently urged throughout that she was not an invitee in the particular part of the room where she was injured, and that never before had customers wandered so'far from the desk, and it could not reasonably have anticipated that plaintiff would be led into such a position. It says these flowers in vases were not for sale and this “ cabinet ” was merely a cold box back of a window for . storage and preservation of flowers cut for future use. There was nothing to indicate these purposes to plaintiff. It is commonly known that florists display in cabinets or show cases cut flowers in vases which they offer to intending customers or visitors for sale. To be sure, the place selected, if it was for display, was crude and inartistic. So were the other fittings of this office and workroom. The sale of plants and flowers at retail was not defendant's principal business. But the testimony and photographs fairly indicate conditions which to one ordinarily familiar with other florist shops, would invite a customer to make inspection. The sign already mentioned advertising cut flowers for sale was confirmatory. The passageway was the only way to reach the flowers thus displayed. Persons occupying real property for business purposes who invite others to visit their premises are as a general rule required to exercise reasonable prudence in the care thereof, so that visitors will not be unreasonably exposed to danger. (Hart v. Grennell, 122 N. Y. 371; 29 Cyc. 453.) It often happens that persons chiefly engaged in the sale of goods at wholesale without any special effort to attract retail trade, do permit small sales to customers upon their premises. ’ It then becomes a question of fact as to whether one going to make a small purchase into such an establishment is an invitee upon-different parts of the premises which are not ordinarily used in serving the persons making such purchases at retail. The duty of care varies in view of the circumstances, and the owner of the business does not need to give that careful attention to all parts of his premises, as would those who make an effort to attract many customers to goods displayed in all parts of their store. But the customer coming to such a place remains an invitee and the duty is cast upon the owner to use reasonable care to see that he may move about on his errand as might reasonably be expected, without unnecessary danger. Trap doors, excavations and obstructions have been not infrequent sources of injury to customers while doing business upon the premises of another. Sometimes in cases like this where retail [615] trade was blit an incident of the general business conducted, the courts in this and other jurisdictions have permitted recovery where an invitee has received the injury through the negligence of the owner, determined as a question of fact. There must be granted to the customer a reasonable freedom to examine and inspect goods offered for sale; or he must be warned of peril, if it is sought to restrict his movements where otherwise he would be likely to go. (Sunderlin v. Hollister, 4 App. Div. 478; Cheifetz v. Hills, 86 Misc. Rep. 7; Gallagher v. Halpern, 95 id. 185; Petty v. Stebbins, 164 Ill. App. 439; Christopher Co. v. Russell, 63 Fla. 191; McDermott v. Sallaway, 198 Mass. 517; Kean v. Schoening, 103 Mo. App. 77; MacDonough v. Woolworth Co., 91 N. J. L. 677.) The questions of defendant’s negligence and plaintiff’s contributory negligence were carefully submitted to the jury under proper instructions. The verdict determined that plaintiff as an invitee upon the premises was in exercise of her rights, and that her injury was due to the defendant’s lack of due care. The verdict was not contrary to law or against the weight of evidence. We cannot say the verdict was excessive. We find no sound reason why this verdict should have been set aside; and the order should, therefore, be reversed on the law and facts, the verdict reinstated and judgment ordered for plaintiff thereon, with costs. Hubbs, P. J., Sears and Crouch, JJ., concur; Clark, J., dissents in an opinion and votes for affirmance.