Clark v. Fehlhaber

• Decision Date: 27 March 1907
• Citation: 56 S.E. 817,106 Va. 803
• Parties: CLARK. v. FEHLHABER.
• Court: Virginia Supreme Court

106 Va. 803

56 S.E. 817

CLARK.

v.FEHLHABER.

Supreme Court of Appeals of Virginia.

March 27, 1907.

Negligence—Care as to Persons Invited.

Where plaintiff, about nighttime, called at defendant's house for the purpose of seeing defendant's wife on a matter of business, and entered a side door which was customarily used, and passed into a vestibule from which several doors opened, and she knocked at one of them, whereupon defendant's wife, who was in the house, without ascertaining where plaintiff was knocking, called to her to "Come in, " and, opening the door, plaintiff fell into the cellar and sustained injuries, defendant was not liable.

Error to Circuit Court, Elizabeth City County.

Action by Ernestein Fehlhaber against Reuben O. Clark. Judgment In favor of plaintiff, and defendant brings error. Reversed, demurrer to the declaration sustained, and cause dismissed.

S. Gordon Cumming and S. J. Dudley, for plaintiff in error.

Ashby & Read, for defendant in error.

WHITTLE, J. The defendant in error was the plaintiff in the lower court, and brought an action against the plaintiff in error to recover damages for personal injuries sustained by the plaintiff in falling down a flight of steps leading into a cellar under the dwelling house of the defendant.

There was a demurrer to the declaration, which the court overruled, whereupon the defendant pleaded not guilty, and upon trial of that issue, a jury having been waived, the court assessed the plaintiff's damages at $750, and rendered judgment accordingly. To that judgment the defendant brings error.

The gravamen of the declaration is that the plaintiff conducted a dressmaking establishment in the town of Phoebus; that the wife of the defendant became a customer of the plaintiff, and engaged her services to do certain work at her shop; that in connection with that employment it became necessary for the plaintiff to call at the residence of the defendant; that, though there Is a front entrance to the defendant's premises, it is customary for a person going there on a mission such as the plaintiff's to enter by the side or back entrance; that this is expected, and the premises are so arranged as to give visitors notice of that fact; that on the evening of the accident, "about nighttime, " the plaintiff approached the defendant's dwelling by the route indicated, and entered an open vestibule or hallway in the building, and, observing several doors opening on the vestibule which seemed to lead into the house, but not knowing through which door she was expected to enter, "knocked upon one of the said doors, which she took to be the right one and which led conspicuously off of the said open entrance, and thereupon the defendant from the inside of the house, without attempting to ascertain where the plaintiff was so knocking, instructed her to 'Come in, ' and that the plaintiff, acting wholly upon such invitation, and reasonably believing that she was knocking at a door which led into the said house, attempted to go through the said door, when she was suddenly precipitated forward, headlong down a steep flight of stairs" into a cellar, of the existence of which she was ignorant, and sustained the injuries on which her action is founded.

If we assume, as we must assume on demurrer to the declaration, that the plaintiff went upon the premises of the defendant lawfully and by implied invitation, inasmuch as her errand concerned the business of the defendant's wife, the law is well settled that it was the duty of the defendant to exercise ordinary care to have the premises in reasonably safe condition for the visit. Cooley on Torts, 718; Shear. & Red. on Neg. (3d Ed.) 499a; Beach on Cont. Neg. (3d Ed.) 79 80; R. & M. Ry. Co. v. Morris' Adm'r, 94 Va; 493, 27 S. E. 70, 37 L. R. A. 258.

But the defendant was in no sense the insurer of the safety of the plaintiff, and all she was entitled to demand or expect was that, while exercising reasonable care for her own safety, the defendant would likewise use ordinary care not to expose her to danger. Ordinary care, then, in this instance, was the measure of the defendant's duty to the plaintiff, and the law imposed no higher degree of responsibility upon him.

There is no rule of law which denies to the defendant the right to have a cellar under his residence, nor was there any such defect in connection with the location or construction of the entrance to the cellar in question as would fix upon the defendant want of ordinary care with respect to it. The opening was guarded by a closed door, and, in the exercise of ordinary care, the defendant could not have anticipated that a person unacquainted with the locality and casually visiting the premises would open a closed door in the dark and precipitate herself down the cellar steps, nor can he be responsible for such mischance. Kaiser v. Hirth, 46 How. Prac. (N. Y.) 161. To hold the defendant liable, the injury must have been the naturaland probable result of his conduct, and one which, in the light of surrounding circumstances, he ought reasonably to have foreseen might probably occur. Simmons v. McConnell, 86 Va. 491, 10 S. E. 838; R. & D. R. Co. v. Yeamans, 90 Va. 752, 19 S. E. 787.

Nor is the pretension of the plaintiff strengthened by the fact that the defendant, while in another...