This action was brought to recover damages from the defendants on account of the death of plaintiff's intestate, caused by his falling into an open and unprotected area upon the premises of defendants just outside of Webster alley, in the city of Buffalo.
In September, 1884, the defendants, Smith Davis, owned a lot twenty feet wide with a store thereon, occupied by defendant Bassett as their tenant, the front of which was on Main street and the rear thereof was upon the alley. The rear of the store came within about three feet of the westerly side of the alley, and the space between the store and the alley was occupied by the area, which was eight feet deep, extending the whole width of the lot. The area was entirely open, except a space of three feet and eight inches which was covered by a stone platform over the middle of the area used for entrance into a rear door of the store. The wall under defendants' store formed the westerly wall of the area, and the rear of the buildings northerly and southerly of defendants' lot came out flush with the alley, and thus their foundation walls formed the northerly and southerly walls of the area, and the easterly wall thereof was built of stone, no part of which was in the alley, and upon the top of which was a stone coping seven inches high above the alley and two feet wide. The alley is midway between and parallel with Main and Washington streets, and extends southerly from Seneca street 239 feet, is fifteen feet wide and has no opening or outlet at the *Page 383 southerly end. On the night of September 16, 1884, the intestate was a watchman in the employment of a private detective agency, whose duty it was to go into the alley during the night and examine the doors and windows of certain buildings; and in the discharge of his duties, he entered the alley and fell into the area after twelve o'clock that night, and subsequently died of the injuries there received.
The defendants Smith Davis contend that even if their tenant Bassett was not solely responsible for the condition of the area, and any injury which might be occasioned thereby, there was no negligence, wrong or fault in the construction or maintenance of the area which can impose responsibility upon them for this death.
This excavation was upon their own land, and was made there in the improvement of their lot for a purpose entirely proper. They had the right to make and maintain it, unless it was manifestly and obviously dangerous to persons lawfully using the alley with ordinary prudence and care. (Barnes v. Ward, 9 C.B. 392;Beck v. Carter, 68 N.Y. 283.)
We have seen what kind of an area this was. It was impossible for anyone passing along the street to walk into it, as it was protected on the northerly and southerly sides by the buildings extending to the alley. It was impossible for anyone to fall into it from the street without going over the stone coping seven inches high and two feet wide.
Now what kind of an alley was this? It was in some sense a public alley, and all people who chose to could enter therein. But being closed at one end it was not a thoroughfare, and in no proper sense was it a street for public travel. It was used only by persons having business with the rear ends of the buildings abutting upon the alley, and almost exclusively during business hours and in the daytime. It had no sidewalks, descended from both sides to the middle thereof, and was always much incumbered with barrels, boxes and other rubbish. Obviously, the persons who would use it would generally be such as had business there and were acquainted with its condition. As to such an alley, was this area, separated therefrom by a *Page 384 stone coping two feet wide and seven inches high, so imminently dangerous as to be a nuisance? The facts are undisputed, and there was not enough in them to warrant an inference by the jury that the area was a nuisance, or that the defendants were chargeable with any fault in the maintenance thereof. It is obvious that no harm could come from the existence of the area to a traveler in the alley except under extraordinary circumstances, and against extraordinary accidents the defendants were not bound to guard.
But if we assume that this area was in some sense a nuisance, and that the defendants were guilty of some fault for maintaining it, then, we think, the further contention of all the defendants is well founded, that the evidence fails to show that the intestate was himself free from carelessness, and that his death was due solely to the fault of the defendants. He fell into that portion of the area between the stone platform over the middle thereof and the northerly end thereof and he was found in the bottom of the area with his head towards the south. It is thus manifest that he did not fall off from the stone platform, and, indeed, he had no business to call him upon that. There is not the least evidence showing how the accident happened. When he was found and taken out he gave no account of it. He had been on duty in that alley previously during thirteen nights as follows: August 26, 28, 29, 30 and 31, and September 1, 2, 3, 4, 5, 6, 14 and 15, nine hours each night; and it was his duty to pass through the alley hourly for the purpose of examining the rear doors and windows of five buildings, all on the westerly side of the alley. He was thus perfectly familiar with the alley and must have passed this area more than two hundred times during those nights. Every hour during those nights it was his duty to inspect the next store but one north of the defendants' store, and also the store immediately south of it. As those stores to which his duty called him came out flush with the alley, and the store of the defendants, four stories high, was back three feet from the alley, he must always have been able to determine where that store was, and where the stores to be inspected by *Page 385 him were, even in a dark night. The alley was not lighted on that night, and as all the buildings were from four to six stories high, it must have been dark. But the darkness was obvious and the danger was known, and hence caution and care were demanded of the intestate. How, then, did the accident happen? How came he to fall over this stone coping into this known place of danger? The evidence does not tell us. It is an unsolved mystery. No plausible theory can be suggested to account for it. It is, however, plain that he could not have fallen into it while passing along the street. He must have departed from the street and thus have gone over the stone coping. It is impossible to conceive how he could, when in the exercise of ordinary care and prudence, have fallen into it. We have no right to guess that he was free from fault; it was incumbent upon the plaintiff to show it by a preponderance of evidence. She furnished the jury with nothing from which they could infer the freedom of the intestate from fault. She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises. The authorities are ample to show in such a case the plaintiff should have been nonsuited. (Cordell v. N.Y.C. H.R.R.R. Co., 75 N.Y. 330; Dubois v.City of Kingston, 102 id. 219.)
We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except DANFORTH, J., not voting; RUGER, Ch. J., concurring in result.
Judgment reversed. *Page 386