Williamson v. Neitzel , 45 Idaho 39 ( 1927 )

I cannot concur. While contributory negligence of the plaintiff would be a question for the jury, before that became material there must have been evidence of a duty owed by defendant to plaintiff, and a violation of such duty.

The rule that one who goes to transact business upon premises is an invitee, and that the one in charge owes him a duty to keep the premises in a reasonably safe condition, is subject to qualifications, always depending upon the particular facts and circumstances of the case under consideration. (Ryerson v.Bathgate, 67 N.J.L. 337, 51 A. 708, 57 L.R.A. 307.) It is incumbent upon a plaintiff in such case to show that he was in the part of the building to which he was invited, and using the premises in the manner authorized by the invitation. (Ryersonv. Bathgate, supra.)

Thompson on Negligence (vol. 1, sec. 988) says:

"But this duty does not extend so far as to make such an occupant responsible for the unsafe condition of those parts of his premises not intended for the reception of visitors or customers, and where they are not expected or invited to go."

In support of this, he cites Zoebisch v. Tarbell, 10 Allen (Mass.), 385, 87 Am. Dec. 660. To the same effect is Schmidt v.Bauer, 80 Cal. 565, 22 P. 256, 5 L.R.A. 580. Another case in point is Shaw v. Goldman, 116 Mo. App. 332, 92 S.W. 165, wherein we find this:

"But this salutary rule of law extends no further than the reason for its existence. It predicates upon the invitation, express or implied, to transact business in the business place and usual and customary ways to and from and appurtenant thereto. . . . . And to extend its application beyond the usual business place and such usual ways appurtenant, and into the private apartments, quarters, or warerooms of the proprietor, which are not intended for the transaction of business with the public, there must be a showing of something more than the usual implied invitation of the shopkeeper to the general public to enter therein for the purposes mentioned, for the very sufficient reason that such places in and about business establishments are of necessity private in their nature and in which the customer has no place nor right, save and except on express invitation. . . . . He, having gone beyond the limits of the storeroom into which he came as a customer on the implied invitation, went beyond the limits of the invitation extended as well, and therefore there was no such obligation as above mentioned resting upon appellants in his favor unless he was ordered or invited by express act or conduct by someone in authority or possessed of sufficient apparent authority thereabout, and the burden is on the respondent to show such further express invitation or order."

Murray v. McLean, 57 Ill. 378, very similar to the instant case, supports this view. Other cases to the same point areRooney v. Woolworth, 74 Conn. 720, 52 A. 411; Johnson v.Ramberg, 49 Minn. 341, 51 N.W. 1043; Kennedy v. Chase, 119 Cal. 637, 63 Am. St. 153, 52 P. 33.

One must show that he was in the usual passageway. (Peake v.Buell, 90 Wis. 508, 48 Am. St. 946, 63 N.W. 1053.) There was not the slightest evidence to go to the jury that the passageway which plaintiff took, leading into the dark from the side of the main way in which he entered, was ever used by any of the public in any way, or kept, used or intended for the public, or that the public ever used the passageway to or across or entered the elevator from the doors leading to the office, or the office from the elevator.

Plaintiff declined the invitation to enter the office, to which he was invited by all the appearances as well as by a sign which he said he saw, which plainly indicated the entrance thereto near the front where he entered the building. There was no invitation, express or implied, for the plaintiff to be at the place where he was injured.

It was the duty of the court to direct a verdict. (Gaffney v. Brown, 150 Mass. 479, 23 N.E. 233.)