That the plaintiff was a business invitee is unquestioned. Obviously the invitation *Page 110 extended to an inspection of the entire house, including the basement; and it did not require her to inspect only such portions as might be shown by the agent. It included the right to independently inspect all or any part of the premises.
The rule is that the owner of a building who invites another to inspect it with a view of selling the property to the invitee, is charged with the duty of using ordinary care in having the premises in a reasonably safe condition for inspection; and if there are concealed dangers unknown to the inviteee, but known to the owner, or which by the use of ordinary care he should have known, the duty extends to giving the invitee notice thereof. Serota v. Salmansohn, 256 Mass. 224, 152 N.E. 242, 46 A.L.R. 517; Smith v. Jackson, 70 N.J.L. 183, 56 A. 118; Rudolph v. Elder,105 Colo. 105, 95 P.2d 827; Flanigan v. Madison Plaza Grill,129 N.J.L. 419, 30 A.2d 38; Knapp v. Conn. Theatrical Corp.,122 Conn. 413, 190 A. 291; Pickford v. Abramson, 84 N.H. 446,152 A. 317; Montgomery v. Allis-Chalmers Mfg. Co., Tex. Civ.App.,164 S.W. 556; Silvestro v. Walz, 222 Ind. 163, 51 N.E.2d 629; Marston v. Reynolds, 211 Mass. 590, 98 N.E. 601; 38 A.J. "Negligence" Sec. 96 et seq.; Cooley on Torts, 4th Ed., Sec. 440; II Restatement of Law of Torts, Sec. 343.
Whether there was a concealed danger to one opening the basement door, that should have been disclosed to plaintiff, under the circumstances was a question for the jury, who probably inferred that if she had been informed of the danger which was pointed out to her daughter, the accident would not have occurred.
The more difficult question is whether as a matter of law the plaintiff was guilty of contributory negligence in returning alone to the breakfast room with the knowledge that there was a basement under the house, opening a door and stepping into a dark opening with which she was unfamiliar, in the belief that she was entering a bedroom. Unless we are prepared to say that all reasonable persons would conclude that she was not exercising ordinary care in opening the door and stepping "into space" (as stated by her) thinking she was entering a bedroom, the question of whether she was contributorily negligent was one for the jury. Some courts in similar cases hold it to be a question for the jury (Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1018F, 137; Palmer v. Boston Penny Sav. Bank, 301 Mass. 540,17 N.E.2d 899, 120 A.L.R. 633; Skidd v. Quattrochi, 304 Mass. 438,23 N.E.2d 1009; Pope v. Willow Garages, 274 Mass. 440,174 N.E. 727; Flanigan v. Madison Plaza Grill, supra; Pickford v. Abramson, supra; Montgomery v. Allis-Chalmers Mfg. Co., supra; Burke v. Piper's Super Service Stations, 312 Ill. App. 656,38 N.E.2d 785; Serota v. Salmansohn, supra; Marston v. Reynolds, supra) while others hold that under the facts of particular cases the invitee was negligent as a matter of law. (Tutwiler v. I. Beverally Nalle, Inc., 152 Fla. 479, 12 So. 2d 163; *Page 111 Plahn v. Masonic Hall Bldg. Ass'n, 206 Minn. 232, 288 N.W. 575; McNaughton v. Illinois Cent. R. Co., 136 Iowa 177, 113 N.W. 844; Medcraft v. Merchants' Exchange, 211 Cal. 404, 295 P. 822). Tutwiler v. I. Beverally Nalle, Inc., supra, is a very similar case.
Unless all reasonable persons would say that plaintiff was contributorily negligent, the question was one for the jury. Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540. The jury might have reasoned that plaintiff was invited to inspect the house; that there was a concealed danger behind the basement door of which she should have been apprised so that she would not mistake the basement door for another; or so that she could use more caution if she desired to inspect the basement; that the failure of defendant to apprise her of the danger was the sole and proximate cause of her injury. Our decisions in Seal et al. v. Safeway Stores, 48 N.M. 200, 147 P.2d 359, and Dominguez v. Southwestern Greyhound Lines, 49 N.M. 13, 155 P.2d 138, are based upon entirely different facts, and are in no sense precedents here.
Although the question is not without its difficulties, I am not able to say as a matter of law that plaintiff's own negligence contributed to her injury.
The judgment of the district court should be affirmed.
SADLER, J., concurs.