This is an action of tort for damage suffered by the plaintiff in consequence of falling through a hoistway. The plaintiff was tenant of the second, and the defendants of the first, story of the building where the accident happened. The leases of both parties gave them respectively the use of the hoistway in common with the other tenants. The hoistway was partitioned off from the rooms through which it passed, with bolted doors opening into it on each stoiy, and, when not in use, could be closed by two trap doors which made a floor continuous with that of the rest of the story. There was also a bar which could be put across the entrance door when either trap door was open.
The defendants’ servant, for the lawful use of the hoistway, unbolted and opened the entrance door, opened one of the trap doors, and then shut and bolted the entrance door again. The plaintiff had previously placed a basket of chickens inside the partition, seemingly in such a way as not to interfere with the use of the hoistway, and, when about to go home, unbolted and opened the entrance door in order to get them, went in, and fell.
The court instructed the jury, in substance, that the plaintiff had no rights in the hoistway under his lease, except to use it for the purposes of a hoistway; that by the common law, (that is, as we understand, apart from agreement,) if he used it forth e purpose of storing chickens, and went there for the sole purpose of getting the chickens, while he was so using it, the defendants were under no legal obligation to him as to the care of the hoistway and bars; and that, if the plaintiff was entitled to recover, it must be by virtue of some agreement which it lay on him to prove, and also to prove that the agreement covered uses for other purposes than that of a hoistway.
. The first of these instructions, we think, limits the plaintiff’s rights too strictly. We cannot construe the lease as excepting so much of the floor as covered the hoistway, so that the plaintiff was a trespasser when he walked upon it for any purpose other than using the hoistway as such. It appears to us a more reasonable construction to hold that the plaintiff might go there for any purpose not inconsistent with the rights of the other-tenants. " And this view is confirmed by the fact, that one of the windows on the plaintiff’s floor, which the plaintiff seems to have *489been bound to keep in repair, and which a tenant would naturally expect to open or shut at pleasure, could only be reached by crossing the hoistway.
The other rulings are based on the premise that the plaintiff was a trespasser; and this error, as we must regard it, did undoubtedly tend to prejudice the plaintiff's case, even if, on other grounds, we should reach some of the conclusions stated by the learned judge at the trial. In one branch of the case, in particular, we think it probable" that the jury were misled. The plaintiff set up an agreement, or understanding, and course of dealing, which, as he contended, gave him a right to expect to find the bar in place when the trap door was open. The language of the charge was as follows: “If the defendants made any agreement or had any understanding with the plaintiff as to how they would manage the hoistway and take care of the same after using it, was this understanding and agreement with reference to some use of the hoistway outside of and apart from the purpose for which it was designed, or had it reference only to • the use of the hoistway as a hoistway ? Did they put themselves, and did the plaintiff understand that they put themselves, under obligation as to care to the plaintiff while using the hoist-way for some other purpose than that of a hoistway? ”
In a sense, this is all true, but coming, as it did, after a statement that the plaintiff had no right under his léase to be where he was for the purposes for which he went there, it must have been understood, and probably was intended to be understood, that a general agreement as to the way in which the defendants would use the hoistway would do the plaintiff no good, unless there was some express reference to his use of it for other purposes than those of a hoistway. We are of opinion that, if the defendants had given the plaintiff the right to expect that, when they opened the trap, they would put up. the bar as well as bolt the entrance door, the plaintiff had the same right to rely on that expectation when going to the hoistway for chickens, as when going there to open the window or to prepare to receive goods.
Although the exceptions must be sustained for the reason which we have given, it seems advisable to give a little consideration to the general question, which was dealt with by the court below, and which must arise again, what, if any, were the *490plaintiff’s rights, in the absence of any agreement or understanding. For, even if the plaintiff was not a trespasser, it is still by no means clear whether the defendants owed him any duty, and if so, whether, it was not performed.
In the case of In re Williams v. Groucott, 4 B. & S. 149, the defendants, who were entitled to the minerals under a field, had lawfully opened a mine shaft in it, but had left the shaft improperly guarded against horses. The plaintiff occupied the field, and his horse fell into the shaft, and was killed. It was held that the defendant was liable, although the question was regarded as nice and novel.
Assuming that we should have decided that case the same way, it will be seen that this is much nearer the line, so far as any duty and breach of duty to guard the hoistway are concerned. The reason given by Chief Justice Cockburn for the decision was, “ that it is more reasonable to expect that the man whose act produces the danger should do all that is reasonably necessary to prevent injurious consequences to the owner of the surface soil, who does not know that a shaft will be sunk, or, if so, when or where it will be sunk.” Here the plaintiff knew of the hoistway, the damage was done to his own person, and while in the English case the defendant had possession of the shaft, here the plaintiff was in possession of the locus. These facts add to the strength of the position for the defendants stated by Chief Justice Cockburn, that they did no more than they had a right to do, and, if dangerous consequences were likely to arise to the plaintiff, it was for him to guard against them.
However this may be, apart from agreement or understanding, what duty to guard the hoistwa}-- could there have been which the defendants did not perform ? It cannot be argued that, on general principles, the defendants were bound to put up two guards, one behind the other. If a man cannot complain when he knowingly walks through a door which he knows leads to a hole that may or may not be covered over, (Taylor v. Carew Manuf. Co. 140 Mass. 150, and 143 Mass. 470,) he cannot complain because a person, who has lawfully opened the hole and has also locked the door leading to it, has not put up a second less effectual barrier behind the door, unless that person has given him a right to expect it.
*491Suppose, however, that the jury had thought that, although the entrance door was shut, it was a reasonable further precaution for the defendants to shut the trap when their work was over, and had found that their work was over, and that they had delayed unreasonably in closing the trap, we think that, if the plaintiff was in a position to recover, the defendants might' be liable on that ground. The extent of duty under such circumstances is a matter of expediency and degree, which different minds might fix at different points. But we think that it would not be unreasonable to require the defendants to put the plaintiff’s floor back to the condition in which they found it, as they did put back the entrance door. The exceptions are not clear on this point, but there seems to have been some evidence which the jury were prevented from considering by the ruling of the judge. Exceptions sustained.