#### Mary T. Larkin, Resp’t, *v.*Hugh O’Neill, App’lt.1

*(Court of Appeals,*

*Filed January 31, 1890*)

Negligence—Obstructions on stairway in store.

The presence of a figure for exhibiting children’s clothing in a dry , ' goods store on a broad carpeted stairway, next the railing, and. the ab*35sence from the steps of footholds, brass plates or rubber pads, or of a handrail on the other side, is not of itself such negligence as to make the proprietor liable for injuries to a customer who falls while walking down in broad daylight.

Appeal from judgment of supreme court, general term, first department, affirming judgment for plaintiff entered on verdict of jury.

*Edward C.*James, for appl’t; *Ira Leo*Bamberger, for resp’t.

1

 Reversing 16 N. Y. State Rep, 28.

O’Brien, J.

The plaintiff recovered a verdict as damages for personal injuries, sustained by falling down stairs in the defendant’s store, on Sixth avenue, between Twentieth and Twenty-first streets, in the city of Hew York, on the 27th day of February, 1885. It is claimed that this accident was the result of the defendant’s negligence.

The plaintiff is a married woman, about thirty-five years of age.1 She had been for ten years prior to the accident a customer of the defendant’s store, and during that time, in every year, had frequently been at the store to purchase goods for herself and her family. ¡

On the day of the accident she went to the store to buy goods, ' and entered on the Twentieth street side. After making some pinchases on the ground floor she went up to the cloak room, on the second floor, in the elevator, and after purchasing a cloak there she inquired for the underwear department, and was told that it was down stairs. One of the clerks pointed out to her the stairs leading down to this part of the store. While attempting to walk down the stairs she fell and sustained the injuries for which the damages were awarded.

It appeared by the undisputed evidence that the stairway had been built a few years before by a competent builder of twenty-eight years’ experience. It was composed of eleven steps, each fifteen feet long, with a rise of seven and a half inches, and a tread of ten and a half inches. The stairs were carpeted down the center for a width of about nine feet, leaving about a yard uncovered at either side. On the left, going down, was a railing protecting the well hole, and on the right a plain wall. On the uncarpeted part of the step next the railing, and a few inches inside it, there was placed on the steps a small form or figure for exhibiting suits for children two or three years of age. A great number of people passed up and down these staffs every day. The defendant proved by an architect and stair-builder that the stairs were safely, properly and conveniently constructed in all respects. Indeed, the only proof of negligence on the part of the defendant that seems to be relied upon by the plaintiff to uphold the verdict is the presence of the figure for exhibiting children’s clothing next the railing and the absence from the steps of footholds, brass plates or rubber pads. The defendant was a dry goods dealer, transacting a very extensive business. A large number of people frequented his store every day. The business that he was conducting was, from its very nature, an invitation to the public to enter upon his premises. He was bound to use reasonable prudence and care m keeping his place in such a con*36dition 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. *Beck*v. *Carter,*68 N. Y., 283; *Larmore*v. *Crown Point Iron Co.,*101 N. Y., 391, 395; 1 N. Y. State Rep., 43; *Bennett*v. *R. R. Co.,*102 U. S., 577.

There is no proof in the case from which it could be found that the defendant neglected any duty that he owed to the plaint-iff. She was not exposed to any unreasonable or concealed danger. She fell while walking down a broad, carpeted stairway, between four and five oclock 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. It is quite probable that the accident occurred from slipping, or from a mis-step by the plaintiff. But whatever caused the injury it is quite clear that it could not be attributed to any want of care on the part of the defendant. The language of the court in *Crafter*v. *Metropolitan Railway Co,*L. R., 1 C. P., 300, applies. “ The line must be drawn in these cases between suggestions and possible precautions, and evidence of actual negligence, such as ought reasonably and properly to be left to a jury. It is difficult, in some cases, to determine where the line is to be drawn, but here I have no hesitation in saying that there was no evidence of negligence which could properly be left to the jury. There was nothing unusual in the construction of the staircase. The use of brass for protecting the edges of the stairs, and the absence of a hand-rail, which alone are relied on by the plaintiff, are by no means unusual in staircases of a similar description, where the traffic is great. They were obvious to every one using the stairs, and were well known to the plaintiff himself. The plaintiff has no right to complain of the absence of accomodation of an unusual kind.”

We think there was no evidence in this case of negligence on the part of the defendant that could properly have been submitted to the jury, and it follows that the defendant’s request for a non-suit at the close of the case should have been granted.

The judgment should be reversed, and a new trial granted, costs to abide event.

All concur.