We are of opinion that this case is a proper one for the consideration of a jury, not on the question of damages only, but also to determine whether the facts are such as to fender the defendants liable in this action. As the case stands on the report, we are not prepared to pronounce a decision in favor of either party Some of the essential facts involved in *382the issue are in controversy, and the determination of them depends on a variety of circumstances which cannot be intelligently and satisfactorily considered and applied by the court upon a case reserved. There are cases, and this seems to us to be one of them, the decision of which must turn in part on the credibility of witnesses, as indicated by their appearance and mode of testifying, and in part on the proper application of facts to the subject matter which render it peculiarly necessary and proper that they should be submitted to the judgment of practical men, in order to arrive at correct and safe results. For this, reason, we do not deem it expedient to exercise the power reserved to the court by the assent of the parties, of determining whether, on the evidence stated in the report, this action can be maintained against the defendants.
Upon a new trial, the case will present itself in two aspects. One question will be, whether the right to use the entry or vestibule leading from the street to the stairway by which access was gained to the chambers of the building was included in the verbal lease under which the plaintiff’s employer, the witness Ide, occupied the premises as tenant of the defendants. The testimony of this witness on this point, as stated in the report, is exceedingly vague and unsatisfactory. He appears to be an unwilling witness. He does not state distinctly whether the right to enter from the street through the place where the accident happened was included in the demise. All he says on this point is, that, in making his contract for a lease, nothing was said between him and the defendants about the right to pass through the lower entry. He does, however, state that the entrance to the shop occupied by him is through the doors of No. 47; that is, through the store on the first story or basement of the building. And yet he also says that he did not know where the general entrance was for the girls in his employment, and that he went as often one way as the other. By the testimony of the other witnesses in the case, it appears that the general and ordinary entrance to the upper rooms of the building was through the entry in question, and that the girls employed by Ide were in the constant habit of going to the room where they *383Worked by passing from the street through this entry and thence up the stairway; and that entrance by any other way was an exception to the general usage. It also appears that this practice was well known to the defendants and persons in their employment. In this state of the evidence, taking into consideration the fact that the building was so constructed that access to the chambers was readily gained through the entry in question, which was in fact one of the purposes for which it was designed, we think it was a proper question to be submitted to the jury, whether the right to enter there was not understood by the parties to be included in the verbal demise by the defendants to the tenant of the upper rooms. If this was found in the affirmative, then the rule of law which would govern the case is very plain and simple. The defendants would be bound to use the trapdoor .there situated with reference to the fact that others had a right to pass and repass through the entry in going to and from the upper rooms of the building; and if the defendants were guilty of negligence, either by omitting to stop all passing through the entry while the trap-door was open and they were hoisting goods, or by failing to take any other suitable and reasonable precautions to guard against accident, they would be liable in damages to a person having lawful occasion to pass to or from the upper rooms, who, while in the use of due care, sustained injury by reason of their negligence.
There is another view of the evidence on which the plaintiff might be able to satisfy a jury that the defendants ought to be charged in this action. It appears by the testimony given at the trial, and by an inspection of a photographic representation- of the premises which has been submitted to us, that the doorway leading to the entry in question is situated in the front line-of a large warehouse on Summer Street; that it is closed by a door with three folds; that two of these folds were usually turned aside so as to make the entrance from five to seven feet wide ; that when the door is thus opened, a wide staircase is visible, leading to the chambers of the building, and that the entry is about ten feet long from the door to the beginning of the staircase. These facts, if uncontradicted, and if there is nothing in *384the construction or appearance of the place to control the natural inference from them, would seem to show that the doorway and entry were intended as a proper mode of access to the upper part of the building from the street, and that it was the only direct one, as there was no other entrance except through the warehouse in the lower story ; and that the situation and aspect of this part of the premises were such that they were held out by the defendants as a proper and suitable place for those having lawful occasion to go into the chambers or lofts above to enter for the purpose of ascending the stairs. It also appears that the defendants were cognizant of the fact that the entry was in constant daily use by more than one hundred workwomen, who entered and passed over the place where the trap-door was situated, in order to ascend the stairs to the upper rooms of the building where they were employed. This aspect of the case would seem to bring it within the principle of law fully considered and stated in Sweeny v. Old Colony & Newport Railroad, ante, 368, whereby a party is held liable in damages to a person injured by a defect or obstruction in a private way or passage into which he has been induced to enter for a lawful purpose by any invitation, allurement or enticement, either express or implied, held out to him by the party sought to be charged. Whether there are facts which ought reasonably to repel the inference arising from those to which we have adverted, and to show that no inducement or invitation of any kind was held out to the plaintiff—- such, for example, as the appearance of the entry in question; that it was finished with battens; that chains and ropes were hanging there, and that it was designed for use as a hoisting place only, and not for passing to and fro — is a question which can be best determined by practical men, on a view of all the facts and circumstances bearing on the issue. Upon this part of the case, the proper instructions in matter of law would be substantially these: The warehouse of the defendants being upon a public street in the city, and being used by persons who had lawful occasion to pass from the street to the upper parts of the building, if the doorway and entry where the injury to the plaintiff happened were so constructed as to appear to afford a proper *385place for gaining access to the chambers, and they were left open by the defendants in such manner as to be held out to persons having occasion to go into the chambers as a suitable place of entrance thereto, who were thereby induced to enter, the defendants would be liable to any person lawfully passing there under or by reason of such inducement, who was injured in consequence of the carelessness of the servants of the defendants in leaving the trap-door open, whereby such person, using due care, fell and sustained personal injuries.
New trial ordered.