HARDIN, P.J.:

Inasmuch as the plaintiff's complaint was dismissed at the trial she is entitled to the most favorable view of the evidence and the inferences that are deducible therefrom in the review of the decision made at the time her complaint was dismissed. ( Raabe v. Squier, 148 N.Y. 87; Hanover Bank v. American Dock Trust Co., Id. 619.) On the afternoon of the 17th of November, 1893, the plaintiff, in company with her sister, Mrs. Davis, visited the store of the defendants for the purpose of purchasing a pair of rubber shoes. They entered the store from Market street and passed several feet northerly along an aisle until they reached an aisle extending towards the west side of the store, and then they proceeded to a point where the aisle entered another aisle running northerly towards the north side of the store on Franklin street. This was the usual and ordinary passageway used by persons visiting the store entering from Market street. Plaintiff and her sister went into the west aisle, and, turning north, saw persons in the north part of the store, and among them one of the defendants, Noble, and some of his employees, at a point near an aisle running east and west, and while they were about thirty-eight feet south from defendant Noble, who was standing at a counter, the plaintiff halted and her sister proceeded north in the aisle to the vicinity of where the defendant Noble and two of his employees stood. Mrs. Davis then inquired of the defendant Noble the whereabouts of Nagle, one of the clerks; she was informed by the defendant Noble that "he was on the other side," and the defendant Noble at the same time pointed towards the east side of the store. Nagle seemed to have been the clerk that the plaintiff and her sister desired to have their transaction with, and when Mrs. Davis started to return along the aisle to the place where she had left her sister, she heard the plaintiff scream, and upon arriving at the place where she had left the plaintiff, she did not find her sister, and hearing another scream she stepped a few steps east along the east and west aisle, and she discovered from another scream from below that her sister had fallen into the aperture in the floor, which was not guarded on the west side. The evidence tended to show that the floor was black, or dark, and that the space in and about the opening was somewhat dark, and that there was nothing especially to attract the attention of any one to the opening in the floor. Evidence was given tending to warrant a finding that the plaintiff had no knowledge or notice of this opening in the floor. Some forty feet down the main alleyway and approximately near the center of the floor there was an alleyway some five feet wide, which led easterly seven feet to the edge of the elevator well, which was as wide as the alley and three and a half feet across east and west. It is claimed by the defendants that this was not used for passage, but was used only to reach the elevator from the main aisle. It stopped at the elevator, which, on its east side, was in a line with the side of the next aisle west, "and on which line bars had been placed across the elevator opening." The evidence tended to show that Nagle was working in the most easterly aisle near Market street; that Olmstead was using the elevator, which was then standing at the next floor above. At the junction of the second alley with the one leading to the office from Market street hung a sign some four or five feet long, having printed on it the words "positively no goods sold at retail." There was some evidence tending to show that the employees had received verbal notice not to sell at retail. The evidence given tended, however, to show that, during the eight years the defendants had been using this building, some sixteen different purchases had been made at retail, and several of the sales had been made by the clerks, Knapp and Nagle. Although there was some evidence given tending to indicate that the defendants had no knowledge of such sales, there was other evidence from which the jury might have found that the defendants had notice that in several instances such sales were made. It seems to be conceded that the elevator aperture was, "on its eastern side, barred to prevent employees from stepping off the aisle into the well, such an accident to a stranger having once occurred." The evidence indicates that it never had been guarded on the west side. Nagle, the clerk for whom Mrs. Davis inquired, was her nephew. It seems that the rubber goods that were sold at retail were paid for in cash, and that the cash was taken to the office by the clerk who made the sale and placed in the money drawer, and that at the end of each day when such sales were made, the cash was counted and entered in the cash book as a gross item. From all the evidence given upon the trial the jury would have been warranted in finding that the plaintiff was authorized to enter the store on the occasion, and for the purpose which she avows she had in entering the store at the time of the accident.

In Hart v. Grennell ( 122 N.Y. 374) it was said in the course of the opinion by BROWN, J., viz.: "The general rule applicable to persons occupying real property for business purposes, and who invite and induce others to visit their premises, is, that they must use reasonable prudence and care to keep their property in such a condition that those who go there shall not be unreasonably and unnecessarily exposed to danger. The measure of their duty is reasonable prudence and care. ( Larkin v. O'Neill, 119 N.Y. 221; Sweeny v. O.C. N.R.R. Co., 10 Allen, 368-373.) The rule has reference to such dangers as might reasonably be anticipated by a prudent and careful man."

In James v. Ford (30 N.Y. St. Repr. 668) in the course of the opinion it was said: "It thus became defendant's duty to exercise reasonable care in maintaining the premises, and the means of entrance and departure at all times in such condition that others visiting his store upon business might enter and depart with safety to themselves, and for an injury arising from the breach of that duty the defendant is answerable in damages."

In Larkin v. O'Neill ( 119 N.Y. 221) the only evidence of negligence was the presence of a figure for exposing children's clothing upon steps next the railing, and the absence from the steps of footholds, that is, brass plates or rubber pads. In that case it appeared that a large number of people frequented the store of the defendant every day, and in the course of the opinion it was said, viz.: "He was bound to use reasonable prudence and care in keeping his place in such a condition that people who went there by his invitation were not unnecessarily or unreasonably exposed to danger. The measure of his duty was reasonable prudence and care." And in support of that proposition Beck v. Carter ( 68 N.Y. 283); Larmore v. Crown Point Iron Co. (101 id. 391-395), and Bennett v. R.R. Co. ( 102 U.S. 577) were cited.

In the Larkin case the plaintiff fell while walking down a broad carpeted stairway between four and five o'clock in the afternoon; there was nothing in the manner in which the stairs were constructed, used or kept from which such a result could reasonably be anticipated; and upon the evidence in that case it was finally said that it did not present a case of negligence on the part of the defendant proper to submit to the jury. The case differs so essentially from the facts in the case before us that it does not support the contention of the defendants.

In Homer v. Everett (15 J. S. 298; S.C. affd., 91 N.Y. 641) it was said to be the duty of the owner or occupant of a building to maintain it in such a condition that those persons whom he invites upon the premises shall not be injured by any defect in the building.

In McRickard v. Flint ( 114 N.Y. 222) it was alleged that the defendant was liable for not having complied with chapter 547 of the Laws of 1874, requiring that the elevator openings in each floor shall be protected by a substantial railing, and while that case is placed largely upon the force of the statute, in the course of the opinion delivered by BRADLEY, J., in speaking of the failure of the defendants to comply with the statute, as shown by the evidence, he observed: "It was a question for the jury, and, upon the request of the defendants' counsel, they were instructed that the plaintiff could not recover unless the jury found that the defendants were negligent in the use of their premises, and that if the condition of the doors and the elevator and its use by the defendants were reasonable, the plaintiff could not recover. The evidence was such as to justify the conclusion that the defendants were chargeable with negligence. And they owed to any person who should lawfully go into the building the duty which the statute imposed upon them to do him no injury by their negligence in that respect. That duty they owed to the plaintiff, who went to the premises for a legitimate purpose;" and upon that opinion a recovery was upheld.

In Swinarton v. Boutillier ( 7 Misc. Rep. 640), in the course of the opinion delivered in that case, the doctrine laid down by Shearman Redfield on Negligence in section 704, that it is the duty of parties to use ordinary care and diligence to keep their premises in a safe condition for the presence of persons who come thereon by invitation, express or implied, or for any other purpose, beneficial to them, was approved, and a verdict based upon evidence tending to show that there had been non-compliance with the rule was upheld.

In a note to Mallach v. Ridley (24 Abb. N.C. 172) several cases are cited and commented upon tending to support the general rule to which we have already adverted, indicating that where there is evidence upon the question of whether there has been reasonable care or not exercised by the defendants, the case should be submitted to the jury.

The learned counsel for the defendants calls our attention to Larmore v. Crown Point Iron Co. ( 101 N.Y. 391). In that case it was held that an owner of premises owes no legal duty to a stranger coming upon his premises, which requires him to keep the machinery in repair. But the learned judge who delivered the opinion in that case recognizes the rule which we have already stated, and uses the following language at page 395: "So, also, where the owner of land, in the prosecution of his own purposes or business, or of a purpose or business in which there is a common interest, invites another, either expressly or impliedly, to come upon his premises, he cannot, with impunity, expose him to unreasonable or concealed dangers, as, for example, from an open trap in a passageway. The duty in this case is founded upon the plainest principles of justice." (Citing Corby v. Hill, 4 C.B. [N.S.] 556; Smith v. London St. K. Docks Co., L.R. [3 C.P.] 326; Holmes v. North Eastern Railway Co., L.R. [6 Exch.] 123.) And he finally concludes in that case by a discrimination in the following words: "But in the case before us there were no circumstances creating a duty on the part of the defendant to the plaintiff to keep the whimsey in repair, and consequently no obligation to remunerate the latter for his injury." We think the case does not aid the contention of the defendants.

Defendants' learned counsel calls our attention to Hilsenbeck v. Guhring ( 131 N.Y. 674), which is quite unlike the case before us. There the plaintiff, in the night time, opened a door and stepped to the head of a stairway and fell down stairs, and it was held that the facts disclosed did not present a case for the jury.

The case of Sterger v. Van Sicklen ( 132 N.Y. 499) recognizes the rule that where property is put to public use the party is bound to observe reasonable care in keeping it in condition to save harmless those invited to come upon it for his benefit and profit.

Upon all the circumstances we are inclined to think the jury would have been warranted in finding that the plaintiff entered the store as a customer, under an implied authority from the defendants, and that she was rightfully upon the premises, and that under the circumstances disclosed, as to the presence of one of the defendants just before the injuries were received, the authority of the defendants for her being in and about the store might have been found by the jury, and the evidence required the court to submit to the jury the question as to whether the defendants had exercised that care and prudence which the law requires of them in respect to parties situated as the plaintiff was at the time she received the injuries alleged.

(2) It is contended in behalf of defendants that plaintiff was guilty of contributory negligence. By all the facts and circumstances disclosed in the case upon that subject, we are led by them to say that a question of fact was presented for the jury to determine whether she was free from contributory negligence. It is only in exceptional cases, where facts and circumstances attending the accident are disclosed, that it becomes a question of law instead of a question of fact. ( Simmons v. Peters, 85 Hun, 97; Wilcox v. N.Y., L.E. W.R.R. Co., 88 id. 263; McRickard v. Flint, 114 N.Y. 222.) In the course of the opinion delivered in the latter case by BRADLEY, J., it was said: "It was the duty of the plaintiff to exercise reasonable care, and to take observation of that which was apparent to view as he proceeded. But what is due care and diligence depends upon circumstances." We see nothing in the case which requires us to say that the testimony points as much to her negligence as to its absence, and, therefore, the rule laid down in Wiwirowski v. L.S. M.S.R.R. Co. ( 124 N.Y. 420) is not to be applied to the case. The explanations made by the plaintiff of the circumstances attending her fall are such as to leave a fair question of fact for the jury to determine whether she used such care and caution as a person of ordinary prudence would have exercised at the time she fell.

The foregoing views lead to the conclusion that there was error in dismissing the plaintiff's complaint, and that the questions of fact ought to have been submitted to the jury.

All concurred, except ADAMS, J., not sitting.

Motion for a new trial granted and a new trial ordered, with costs to abide the event.