The action was brought to recover damages for personal injuries alleged to have resulted to the plaintiff from a fall into a cellar beneath the packing room in the defendants’ green house, through a trap door alleged to have been left open in consequence of the negligence of the defendants.
The only question we deem it necessary to considér on this appeal is, whether the plaintiff satisfactorily established, on the trial, her own freedom from contributory negligence at the time the accident occurred. She had the burden of proof upon this element of the *118cause of action. The room was concededly so light that there would have been no difficulty in seeing the opening into which the plaintiff fell, if she had looked at the floor at all. She walked along without exercising any care whatever to see where she was going. All her companions saw the opening and avoided it. She did not look, and her entire failure to- exercise any care was the-cause of the accident.
She testified that she remembered nothing that occurred after she stepped into the room until after the accident. If that was true,. then she exercised no more care than if she had walked with her eyes closed, because she had to pass over some five or six feet after she stepped into the room before she fell.' She was not going out-of the building in the same way she went in, and had never been there before, and she was called upon to- use some care to see where she was going. She must have exercised no care whatever, or she would have seen the opening and been able to avoid it, as all the-witnesses testified upon the trial. Dr. Roberts said: “bio one could pass there without-seeing it. It was perfectly light in that-room. * * * Anybody that could look around could see exactly what the situation was. They ought to have seen that plainly. There was nothing to prevent.” Mrs. Burpo said : “The room was light as any room ought to be. * * * I saw distinctly. * * * Anyone looking upon the floor * * * must certainly see it.. I. couldn’t help seeing it.” ' Mrs. O’Dell said; “When! came to the door there I saw this trap-door * * * perfectly plainly. It was perfectly light there. I couldn’t help but see it. It was all open ; exposed- to view. *• * "" It was perfectly evident to me when I came out of the door that the -trap-door was open and in plain sight. Anyone could have seen it. They could not have helped seeing it, if they had looked on the floor." There was' ne contradiction whatever of this evidence. Upon these facts, we thinlc the referee was not justified- in finding that the plaintiff was ■ free from contributory negligence. There are many reported cases sustaining the conclusion at which we have arrived upon this question, the latest of which are Weston v. The City of Troy (139 N. Y. 281) and Whalen v. Citizens’ Gas Light Co. (151 id. 72).
In the Weston case, the. plaintiff stepped upon a ridge of ice upon the sidewalk, and slipped and fell and was injured. Andeews, Ch. *119J., said; “ Whether the plaintiff saw the ridge before stepping upon it, does not appear. Nor was it shown whether she was walking fast or slow, or what attention she was paying, if any, to the condition of the sidewalk. If she discovered the ridge, she was not required to leave the sidewalk, but she might, without being subjected to the charge of negligence, using due care, have kept on her way. But she could not heedlessly disregard the precautions which the obvious situation suggested and proceed as though the sidewalk was free and unobstructed. The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.”
In the Whalen case, the plaintiff tripped her foot upon a flagstone of the sidewalk which had been removed from its place and lay across the walk, and fell and was injured. Haight, J., said: “It was a bright day and about eleven o’clock in the forenoon. The obstacle over which the plaintiff fell was a large flagstone over four feet in length and three in breadth. There was nothing to obscure her vision, her eyesight was good, and she could see as she was walking along the walk. It is npt pretended that anything occurred that momentarily obstructed her vision, and it is difficult to conceive how she could have avoided seeing the obstacle, unless she was heed-' lessly proceeding in utter disregard of the precautions usually taken by careful and prudent people.”
The judgment appealed from should be reversed and a new trial ordered before a new referee to be named in the order, with costs of this appeal to the appellants to abide event.
Patterson and Ingraham, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.
Judgment reversed, new trial ordered before a new referee to be named in order, with costs to appellants to abide event. . .