40 SD 13 - Johnson v. Glasier

GATES, J.

¶1Action for damages for personal injury sustained by plaintiff in falling into a ditch in the night time on defendants’ premises. Judgment for plaintiff, and defendants appeal.

¶2Defendants occupied the premises as a hospital. Plaintiff accompanied another person who delivered milk and butter at the rear entrance. Instead of returning by the path by which she came plaintiff went around the building and diagonally across the premises, and fell into a ditch that was being excavated. There is a dispute in the evidence as to whether at the place of injury *15there was a path across -the premise's by which persons were in the habit of traveling between the town and the hospital. Defendants’ evidence tends to ’show .'that the usually traveled path to the town was at another place, and that this was protected where it crossed the ditch.

¶3[11 Tlie evidence on behalf of plaintiff tended to show that the path followed by plaintiff was a usually traveled route to the town. Plaintiff testified that ©he had been at the hospital once before, and that she tiren saw a path leading across the lawn, and that it was this path which she followed- when the accident -occurred. In view of the conflict in the evidence we cannot say that it was clear drat defendants owed no duty to plaintiff to protect the ditch at that point. Morrison v. Carpenter, 179 Mich. 207, 146 N. W. 106, Ann Cas. 1915D, 319; Beck v. Carter, 68 N. Y. 283, 23 Am Rep, 175; Barry v. N. Y. C. & H. R. R. Co., 92 N. Y. 289, 44 Am. Rep. 377; Graves v. Thomas, 95 Ind. 361, 48 Am. Rep. 727. The verdict of the jury is controlling upon this the principal point in the case.

¶4[2] It i© urged that plaintiff was not upon the premises by invitation of the defendants. It is -clear that 'the person whom plaintiff accompanied was there by defendants’ invitation. Shearman & Redfield, Neg. (5th Ed.) § 706; 29 Cyc. 456; Patten v. Bartlett, III Me. 409, 89 Atl. 375, 49 L. R. A. (N. S.) 1120. The same rule should apply to plaintiff who- at night accompanied the person making the delivery of the butter and milk.

¶5Finding no error in the record, the judgment and order appealed from are affirmed.