Note on Evidence of Value of Neighboring Premises.

where the sum so paid was not only for the land taken, but also for damages to the entire estate on which there was a house near the railway, and a well within the railway location, and through which the railroad was carried on a high embankment.

Chandler v. Jamaica Pond Aqueduct Corporation, 122 Mass. 305. On assessment of damages for the taking of land for public use, evidence as to the price paid for another lot of land not similarly located, more than three years after the taking of the petitioner's property is inadmissible.

O'Hare v. Chicago, Madison, etc., R. R. Co., 139 Ill. 151; S. C., 28 Northeast Rep. 923. It is incumbent upon the party offering evidence of sales of other lands in the vicinity to aid in the estimating the value of the tract in controversy, in order to render such evidence admissible, to first prove that the lands sold were similar in locality and character to the premises in question, and that the sales were voluntary and in good faith.

Washburn v. Milwaukee & Lake Winnebago R. Co., 59 Wis. 364. In proceedings to assess compensation for lands taken for a railway, much latitude of proof is allowed, and evidence of sales of other lands may be admitted in the discretion of the court. But to render such evidence of any value, the other lands must be similar in character and location to the land in question, and their sales should not be too remote in time.

May v. Boston, Mass. 1893, 32 Northeast Rep. 902. In a proceeding by a land owner against a city to recover damages for land condemned for a park,-held, that it was not error to exclude the testimony of a witness as to the price brought by land lying directly opposite petitioner's, more than a year after petitioner's land was taken, since the value of the land sold at the later date might have been affected by the location of the park and other causes.

Kansas City & Topeka Ry. Co. v. Splitlog, 45 Kan. 68. In an action to recover the value of a tract of land taken for railway purposes which was used as a farm,-held, that it was error to admit evidence as to the value of lots on the principal street of a city near by.

Chicago, Kansas, etc., R. R. Co. v. Emery (Kan. 1893), 32 Pacific Rep. 631. In proceedings by a railway company to condemn real property, a witness called by the company stated that he based his judgment as to the market value of the land on sales made in the neighborhood and gave testimony with reference to several farms which had been sold at a stated price.-Held, that it was not error to allow the owner to show in rebuttal that his land was superior in quality to that with which it was compared.

Swinarton v. Le Boutillier.

SWINARTON v. LE BOUTILLIER.

N. Y. Common Pleas, General Term; April, 1894..

1. Negligence; liability of storekeeper for mischievous act of employee.] The proprietor of a store extends an implied invitation to customers to enter his premises, thus authorizing and inducing them to confide in the good conduct of his servants, and thereby assumes the duty, by the exercise of reasonable care, of protecting them from injury by the misconduct of such servants; and he is answerable for any injury sustained by such misconduct, which, in the exercise of reasonable care, he might have prevented.*-So held, sustaining a recovery by a customer for the loss of an eye, resulting from the mischievous snapping of a pin by a cash boy, where the habit of so doing had existed for months, and no reasonably sufficient precaution had been taken to suppress the practice.

2. Witness; cross-examination.] A statement of a witness to a third person, not part of the res gestae, and not tending to impeach his testimony in chief, is incompetent on cross-examination.

Appeal by defendant from a judgment in favor of plaintiff, rendered upon a verdict.

The action was brought by Anna E. Swinarton against George Le Boutillier to recover damages for personal injuries sustained by plaintiff, while in defendant's store as a customer, from the snapping of a pin by a cash boy, which pierced and put out her eye. The facts are fully stated in the opinion.

J. Delahunty, for appellant.

Hatch & Wickes, for respondent.

PRYOR, J.-The ground of an action for negligence

* See note on liability for injuries received on defendant's premises, in 24 Abb. N. C. 181.

Swinarton v. Le Boutillier.

is the breach of a duty owing by the defendant to the plaintiff. To sustain such action it is incumbent on the plaintiff to show the duty and to prove its breach, with a consequent injury to himself.

In the present case, that the plaintiff has suffered injury from the act of which she complains, and that the damages awarded are not an excessive reparation for the wrong, if such there be, are not the subject of controversy. The contention is over the two other elements of actionable negligence; namely, the duty and its breach.

These essential facts a plaintiff must establish, not by a scintilla of evidence merely, but by proof reasonably sufficient to uphold a verdict in his favor.

Upon a critical review of the evidence, our conviction is that it suffices to support the facts from which plaintiff deduces the duty and the breach; and hence, the question for adjudication is: Do those facts show a case of actionable negligence? In other words, can it be affirmed of the facts, as a legal conclusion, that they involve a violation of duty to the plaintiff?

It is conceded that at the time of her injury the plaintiff was on the defendant's premises by his invitation and for his advantage, and that she suffered the hurt by effect of a mischievous agency operating on those premises, of which she was without notice. But this is not enough. To complete a case of actionable negligence on the theory under consideration, the plaintiff must go farther and show the defendant responsible for the harmful agency by proof that it exists in consequence of his want of care. Imposing authority might be adduced for the proposition that the duty of defendant was more absolute—that is, not to permit the hurtful agency on his premises (Beck v. Carter, 68 N. Y. 283, 292, and citations); but we prefer to limit his liability to the absence of proper diligence in the protection of the plaintiff (Coughtry v. The

Swinarton v. Le Boutillier.

Globe Woolen Co., 56 N. Y. 124; Bennett v. Louisville. & Nashville R. R. Co., 102 U. S. 577).

It being settled law that an occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the presence of persons who come thereon by his invitation, express or implied, or for any other purpose beneficial to him (2 S. & R. on Neg., 704); the questions presented by the facts as found are: First, were the premises in an unsafe condition, in the legal sense? and second, if so, was that condition the effect of defendant's want of care and diligence?

Had plaintiff sustained the injury from a defect in the premises, or in machinery upon them, assuming negligence in keeping them, the liability of the defendant would be beyond dispute. But here the injury was inflicted by the act of a boy with a propensity to mischief, in the employ of the defendant, and by him placed on the premises in a position to do the injury. Why does not such boy, so employed and placed, constitute a danger upon the premises as effectual for evil as a trap door, or pitfall, or a dilapidated stairway? That the cause of the injury need not be an inanimate agency is shown by the decision in Loomis v. Terry (17 Wend. 490), where it was held, that even a trespasser may maintain an action for the bite of a ferocious dog left at large on the defendant's lot (Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 136).

In Mallach v. Ridley (24 Abb. N. C. 172, 181) it is said that "the storekeeper invites the public to enter his premises and to subject themselves to the custody and control of his subordinates, and by parity of reasoning" (with that prevailing in common carrier cases) "he should be held responsible for the brutalities of such subordinates, even when they are not committed in the strict line of their employment."

In Dean v. St. Paul Union Depot Co. (37 Am. & Eng.

Swinarton v. Le Boutillier.

R. R. Cas. 360) the court said that the defendant was bound to use ordinary care and diligence to keep its premises in a safe condition for those who legitimately come there. It had no more right, therefore, to knowingly and advisedly employ, or allow to be employed in its depot building, a dangerous or vicious man than it would have to harbor a ferocious or savage dog, or to permit a pitfall or trap into which a passenger might step as he was passing to or from his train."

The case at bar may be new in the instance, but not in the principle; and in the absence of authority to the contrary, upon the analogies of the law and the dictates of common sense, we adjudge that the presence of the boy on the premises, with his propensity to evil-doing, was a danger against which it was the duty of the defendant, by the exercise of proper care, to protect the plaintiff.

We hold, furthermore, that having invited the plaintiff into his store for his benefit, and having authorized and induced her to confide in the good conduct of his servants, to whom in the transaction of his business he committed her, he thereby assumed the duty, by the exercise of reasonable care, of protecting her from injury by the misconduct of such servants; and that he is answerable to her for any injury she has sustained by such misconduct, which, in the exercise of reasonable care, he might have prevented.

The verdict involves the fact of his failure in the exercise of the duty so incumbent upon him (Sutter v. Vanderveer, 122 N. Y. 652, 654), and we are to inquire whether the evidence suffices to justify the finding of the jury.

The proof is ample to authorize these inferences; that the defendant kept in his store a number of “cash boys" for attendance on customers; that among these boys the propensity and habit of " snapping pins" at objects and persons in the store were prevalent; that