This is an appeal from an order sustaining a demurrer to the complaint. The action is one to recover damages for personal injury alleged to have been sustained as follows: During the month of February, 1917, the plaintiff had occasion to go to a meat market situated on First Avenue Southwest, in the city of Minot, in a building owned and controlled by the defendants, the defendant Northwestern Telephone Exchange Company being lessee. The day was very cold and the air was so filled with flying snow as to obscure the pi aim tiff’s vision and to distract her attention more or less. As the plaintiff approached the public entrance to the meat market, she opened a door on the south side of the building, believing this door to be the one opening into the meat market, but instead it was another door in the same building adjacent thereto but some 30 feet from the meat market door and similar to it in appearance. The door which the plaintiff opened led to a stairway running down to the basement of the build*13ing, and as the plaintiff opened it and stepped in she fell down the stairway and was injured. It is charged that maintaining this stairway •entrance, abutting as it did upon the street and characterized by a similarity of appearance to the public entrance to the meat market, was dangerous and unsafe as to all who, being unfamiliar with the premises, might enter it by mistake; and that it was negligence on the part ■of the defendants to so maintain this entrance.
It is further charged that the maintenance of this basement stairway entrance in the manner stated was a violation of § 21 of the municipal ordinances of the city of Minot, reading as- follows:
“It shall be unlawful for any person in the city of Minot to leave or keep open, uncovered, or unguarded any cellar door, pit, grating, vault, or subterranean passage opening from, into, or upon any street, alley, sidewalk, or public ground within the city of Minot; nor shall it be lawful for any person to suffer any such door or vault, grating, or other opening or place of like nature connected with the premises owned or occupied by him to remain in an insecure or other unsafe condition so that persons may fall into or be otherwise injured by the same.”
The first and decisive question presented upon this appeal is whether or not the complaint states facts which, if proved, would sustain a finding by the jury of negligence on the part of the defendants. Regardless of the decision upon this question, from a common-law standpoint, it might also be proper to consider whether or not the ordinance applies. For if it applies, it may have such a bearing upon the duty of the defendant as either to enlarge the common-law liability or raise a presumption of negligence, and if it does not apply it is proper to so determine for the purpose of settling the law of the case for submission to the jury in case the complaint is otherwise sufficient.
In disposing of the questions raised on this appeal, we find it convenient to notice the contentions of the respondent, as these represent the attack on the complaint.
Attention is given to the allegation that the plaintiff was an “invitee” of the Valley Meat Market as this allegation apparently represents an attempt on the part of the plaintiff to give color to her presence upon the premises which might differ somewhat from that of a trespasser, even though unintentionally or merely technically such. Conceding that if the plaintiff were a licensee upon the defendants’ premises the *14defendants would owe her a greater duty to protect her from injury than if she were technically a trespasser, liability is not necessarily dependent upon the distinction. This will more fully appear from the discussion to follow. Suffice it to say here that we find it unnecessary to discuss.liability from the standpoint of whether or not the plaintiff was technically a trespasser.
The respondent relies upon a general rule which may be stated in substance as follows (quoting from Gibson v. Leonard, 143 Ill. 182-189, 32 N. W. 183, 36 Am. St. Rep. 376, 17 L.R.A. 588:
“Actionable negligence, or negligence which constitutes a good cause of action, grows out of a want of ordinary care and skill in respect to a person to whom the defendant is under an obligation or duty to use ordinary care and skill. The owner of land and of buildings assumes no duty to one who is on his premises by permission only, and is a mere licensee, except that he will refrain from wilful or affirmative acts which are injurious.”
That this general rule finds proper application in cases where licensees or trespassers enter upon premises which are so situated with reference to the public and the avenues of public travel as to involve no special duty toward those who come upon them out of curiosity or to subserve some private convenience, there is no room to doubt. Cusick v. Adams, 115 N. Y. 55, 12 Am. St. Rep. 772, 21 N. E. 673; Moffatt v. Kenny, 174 Mass. 311, 54 N. E. 851, 6 Am. Neg. Rep. 564. This principle may also negative liability in cases like the Illinois case of Gibson v. Leonard, supra, where a licensee is injured through using an instrumentality such as an elevator that is in an unsafe condition but toward whom there was no duty to maintain it in a safe condition. But where a building situated upon a busy public street is devoted wholly or in part to retail commercial use and is especially designed with a view to resort thereto by the public, we are of the opinion that there is a duty with respect to its construction and the manner of its maintenance that does not attach to premises designed purely for convenience in carrying on some private business that is not dependent upon the freedom of public ingress and egress.
We do not consider the general rule above stated and the adjudicated cases in which the rule has been applied to be in point under the facts in the instant case, nor has our attention been called to any authority *15which does seem to be in point. Yet we think the distinction suggested above, based upon location and use, finds support in the cases relied upon by respondent and even in the English cases where the rule of nonliability finds its broadest application. In Hardcastle v. South Yorkshire R. & River Dun Co. 4 Hurlst. & N. 67, 157 Eng. Reprint, 761, 28 L. J. Exch. N. S. 139, 5 Jur. N. S. 150, 7 Week. Rep. 326, it was held that the defendant was not liable where the plaintiff’s intestate in the night time had mistakenly deviated from an ancient footpath and fallen into an unguarded reservoir and drowned—the reservoir being some 20 feet from the footpath. The court, in rendering the opinion (Pollock, C. B.) drew a distinction based upon the degree of proximity of the reservoir to the footpath,-saying: “We think the proper and true test of legal liability is whether the excavation be substantially adjoining the way.” This can only be the test of liability provided some other consideration than the fact of the plaintiff’s being a trespasser is decisive. The true principle, then, would seem to be that the duty is in proportion to the likelihood of injury to those who, at the time, are making proper use of a public highway and are injured as a consequence of the dangerous character of a construction or excavation adjacent thereto-. That the test under the English authorities is not de* pendent upon the fact that the excavation is wholly on the land of the defendant is further illustrated by the case of Hadley v. Taylor, L.R. 1 C. P. 53, 11 Jur. N. S. 979, 13 L.T.N.S. 368, 14 Week. Rep. 59, where the hole into which the plaintiff fell was separated from the highway by 14 inches. These authorities are commented upon in Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175, and in Sanders v. Reister, 1 Dak. 151, 46 N. W. 680, and the principle recognized. The later New York case of Cusick v. Adams, supra, seems to give further recognition to the principle in holding that the' defendant was not liable for an injury occasioned to the plaintiff by using an unsafe bridge which was a private bridge and not adjacent to the public highway, the last fact being emphasized. See also 3 Shearm. & Redf. Neg. 6th ed. § 703.
We are unable to perceive any distinction between the liability -to technical trespassers or licensees who are injured by reason of falling into an unguarded excavation situated in close proximity to an avenue of public travel and a liability for so guarding an entrance to an excavation that it is apt to be mistaken for an entrance to a public market. *16It is therefore our opinion that if the facts pleaded are proved, the jury would be warranted in inferring that the defendant was negligent in the manner in which it guarded the entrance to the basement where the alleged injury took place. 3 Shearm. & Redf. Neg. 6th ed. § 704
We have had some difficulty in arriving at a conclusion as to whether or not, under the facts pleaded, the defendants might be found to have violated the city ordinance above referred to. It will be noted that the ordinance purports to render it unlawful to leave open, unguarded, or uncovered any subterranean passage or to suffer any opening or place of like nature to remain in an insecure or other unsafe condition so that persons may fall into or be otherwise injured by the same. Being of the opinion that the jury would be warranted in finding the entrance to the basement to have, been improperly guarded and the premises to this extent to have been in an insecure and unsafe condition, it would seem to follow that they would likewise be justified in concluding that the ordinance was violated. We therefore think it would be proper for the trial court to instruct the jury that if they should find conditions to exist such as are proscribed in the ordinance, and that the ordinance was violated thereby, the defendants would bo prima facie negligent.
It follows from what has been said that the complaint states a cause of action. The order appealed from is reversed and the ease remanded for further proceeding’s.
Christianson, Oh. J., and Bronson, J., concur.