Lewis-Kures v. Edward R. Walsh & Co.

• Decision Date: 20 February 1939
• Docket Number: No. 44.,44.
• Citation: 102 F.2d 42
• Parties: LEWIS-KURES et al. v. EDWARD R. WALSH & CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

102 F.2d 42 (1939)

LEWIS-KURES et al. v. EDWARD R. WALSH & CO., Inc.

No. 44.

Circuit Court of Appeals, Second Circuit.

February 20, 1939.

James J. Mahoney, of New York City (James J. Mahoney and George J. Stacy, both of New York City, of counsel), for appellant.

Silas B. Axtell, of New York City, for appellees.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

Jurisdiction of the district court rests on diverse citizenship, the plaintiffs, husband and wife, being residents of New Jersey and the defendant a New York corporation. In 1936 the defendant was engaged as a subcontractor in demolishing the United States Post Office building at Troy, N. Y. While this work was in progress, Mrs. Lewis-Kures (for convenience called the plaintiff) sustained a fall on the steps of this building, resulting in personal injuries for which she sought to recover damages from the defendant. Her husband joined in the complaint, alleging a cause of action for loss of her services and companionship. Upon the verdict of a jury they obtained a judgment from which the defendant has appealed, assigning the following grounds for reversal: (1) the plaintiff was a mere trespasser upon the premises; (2) the evidence was insufficient to establish negligence on the part of the defendant; (3) the accident resulted from the plaintiff's own negligence; and (4) error was committed in the denial of requested charges.

The first question is whether the plaintiff was, as she contends, a business visitor upon the premises, or, as the appellant contends, a trespasser. The building had been vacated, and a temporary postoffice had been set up across the street, some three weeks before September 1, 1936, the date of the accident; but the plaintiff testified that she saw no signs telling of the change of location of the postoffice, and that it was not until she had mounted the steps of the Broadway entrance near the corner of Fourth Street and had looked inside the building that she realized it was unoccupied. The issue of fact chiefly litigated was whether the appearance of the building, as she approached it from the west, was such that she should have known that it was being demolished. She admitted that along Broadway a sidewalk "bridge" was being constructed which extended from the easterly end of the building to the easterly side of the steps she ascended, but she thought this indicated outside repairs rather than exclusion of the public from the postoffice. The defendant had started the work of demolition on August 24th, and gave testimony that by September 1st a protecting fence extended along the entire Broadway side of the building, with a door in the fence which the plaintiff opened and passed through to reach the steps, and with warning signs posted on each side of the door to inform the public that the premises were not in use as a postoffice. After verdict we must assume all controverted facts in favor of the plaintiff; hence we must take it that the jury accepted the testimony of the plaintiff and her witnesses and found that she could reasonably believe from the condition of the premises, and did believe, that postoffice business was still being conducted within the building. Consequently, the invitation impliedly extended to the plaintiff as a member of the public to enter the building to mail a letter had not been effectively revoked, and it cannot be successfully urged that she was a trespasser. She was either a gratuitous licensee or a business visitor (Am.L.Inst.Torts, secs. 330-332) and since there was evidence from which the jury could find that the plaintiff entered upon the premises for the purpose of mailing a letter, we shall assume for purposes of decision that she was a business visitor. But the jury was not adequately instructed upon this highly controversial issue. It was told to find whether there was a fence in front of the steps and whether the plaintiff entered through a door in the fence, if there was a fence; but it was not told that if those facts were found in the defendant's favor, the plaintiff was a trespasser and not entitled to recover. Nor was it instructed that a similar result would follow, if it found that open and obvious signs gave warning that the building was no longer used as a postoffice. The defendant's 7th and 9th requests to charge should have been given. Hence the judgment must be reversed in any event.

This conclusion does not, however, avoid the necessity of passing upon the appellant's argument that the evidence was insufficient to establish negligence on the part of the defendant. A motion to dismiss on this ground was reserved, with the tacit consent of the parties, until after verdict. It was then denied. If it should have been granted, this court may direct a judgment of dismissal. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L. Ed. 1636.

Assuming that the plaintiff was a business visitor, the defendant owed her the same duty of protection from bodily harm as though it were itself the possessor of the land. Am.L.Inst.Torts, § 383; Oregon-Washington R. & N. Co. v. Branham, 9 Cir., 259 F. 555; McGlone v. William Angus, Inc., 248 N.Y. 197, 161 N.E. 469; Hall v. Barber Door Co., 218 Cal. 412, 23 P.2d 279. The duty owed by a possessor of land to a business visitor is not that of an insurer. He is liable only if he knows, or in exercise of reasonable care should know, of a condition that he should realize involves...