¶1(specially concurring). This action, as appears from the amended complaint, is brought to recover damages for $13,150 for personal injuries claimed to have been sustained by plaintiff, through the negligence of the defendants, $3,150 of the damages claimed was for loss of time, for bills of expenses incurred, such as for hospital, drug, physicians’ and surgeons’ bills, and other necessary services, fees, and expenses .paid and occasioned by the injuries hereinafter set forth. Of this amount $920 had been paid by defendant Halvorson.
¶2Though the case was presented to this court on demurrer, it will not be necessary to set forth the entire amended complaint, to which the demurrer is interposed; but, it will suffice to set forth the material facts and matters alleged and relied upon.
¶3*17From the amended complaint, it appears that defendant Halvorson, now and during all the times mentioned, is a resident and citizen of Minot, North Dakota, and is, and on the 19th of February, 1917, was, the owner in fee simple of lot twelve (12), Block three (3) of the original townsite of the city of Minot; that there was on said lot a brick building, approximately 140 feet in length, fully covering it, and beneath it there was a basement.
¶4That the Northern Telephone Company, on the day of the injury, and for the year prior thereto, was a tenant in said building, and, as such, did jointly, with the Northwestern Telephone Exchange Company, and the owner of the premises, occupy and have possession of the entire basement underneath the building, and of the door, entrance and stairway leading into the basement, from the south side of the building; that, on January 1, 1916, the Northwestern Telephone Exchange Company purchased all of the corporate stock, corporation assets, and property at Minot, North Dakota, of the Northern Telephone Company, including its lease of the said building and basement, and of the joint rights of occupancy of the Northern Telephone Company, of and to said building and basement, and thereby became the owner of the Northern Telephone Company, defendant, and from and after January 1, 1916, did operate and conduct all of the business done at Minot, North Dakota, of the Northwestern Telephone Exchange Company, in the name of, añd under and by and through the Northern Telephone Company, for the use and benefit of the Northwestern Telephone Exchange Company, which was controlled, operated, and owned by the Northern Telephone Company, and as a part thereof, did have the control, jointly, with said Halvorson, the owner of the building and the leasehold premises, and the entrance into the stairway and basement of the building.
¶5That the side of the building, 140 feet in length, extends along First avenue; that there are two entrances on that side of the building, the one where plaintiff w'as injured, which leads directly to the basement, and another, 30 .feet distant therefrom, which leads into the Valley Meat Market. Each of the entrances had doors thereon. '
¶6On about noon of February 19, 1917, plaintiff went from her place of employment in Minot, on Main street, toward the Valley Meat Mar*18ket, to purchase meats, and intended to enter the meat market, and opened the door believed by her to he the door opening into the meat market, but which'was not, but was one of the same exterior appearance, which was the entrance to the basement.
¶7Extending from this door to the basement was a stairway; it was-about 12 feet from the entrance down the stairway to the floor of the basement.
¶8At the time plaintiff opened the door and stepped into the entrance leading to the basement, thinking she was entering the meat market, she was precipitated, with great force and violence down the stairway to the bottom of the basement, a distance of about 12 feet, and thereby sustained serious bodily injuries, alleged to be permanent.
¶9Her right arm is alleged to have been broken or fractured in three places, the elbow joint stiffened, her back and backbone and spinal cord injured to such an extent as to permanently injure her nervous system, and to cause her to be permanently hysterical, nervous, and debilitated; that the injuries so received have caused in her abdomen a permanent burning sensation, very painful and disagreeable; that from said fall and the shock thereof, she has received a nervous disease or nervous malady of permanent and incurable nature; and that thereby she has suffered great mental and bodily suffering, pain, anguish and agony, and that she will be permanently incapacitated from work and labor; that she was confined to bed in the hospital continuously for two months, and obliged to employ physicians and surgeons, and pay expenses of travel to hospitals at Minneapolis from Minot,. North Dakota, and to pay physicians’ and surgeons’ fees and drug and hospital bills and expenses, to the amount of approximately $750.
¶10It is further alleged that she will be permanently incapacitated from working, and that she has lost thirty months from labor to the date of bringing this action, when otherwise she would have been working at a monthly wage of $80 per month; and that she is damaged by her loss of time in the sum of $2,4-00.
¶11It appears that, at the time of the injury, she was thirty-two years of age; that prior thereto she was sound in mind and body, and in perfect health, and that she was then,' and for years had been employed at her trade as an expert saleswoman, in dry goods and department stores, *19and earning and receiving, for such services, an average wage of $80 per month.
¶12That the entrance of the Valley Meat Market was a public entrance; that, on the day of the injury, it was very cold, and the air filled with flying snow, obscuring the vision and preventing her from seeing ahead of her, and that her attention was more or less distracted.
¶13The complaint further charges, “that the said door and doorway, entrance, and stairway and basement, as so kept and maintained, was dangerous and unsafe to all who, unfamiliar therewith, might enter it, and was a dangerous pitfall and dangerous trap for the plaintiff, and for any person unfamiliar therewith, as was the plaintiff; and who might, believing the said doorway and entrance to be the doorway and entrance into said meat market, in attempting to enter through it into said meat market, but, instead, enter said door, and fall down said stairway into said basement, as did plaintiff, on February 19, 1917.
¶14“And that the defendant, Halvorson, as owner of the said premises, and the Noithern Telephone Company, the Northwestern Telephone Exchange Company, tenants thereof, carelessly, negligently, and in violation of an ordinance of the city of Minot, as hereinafter stated, and in disregard of the rights of the plaintiff, and all other such persons as might enter said door and doorway, did jointly, negligently, and unlawfully keep and maintain the said door, doorway, entrance, and stairway, and such portion of said premises as was immediately adjacent thereto, in its open and unguarded condition, as a dangerous pitfall and place, dangerous to the safety of the public and the plaintiff, and all of which was well known to be such to said owner and tenants.
¶15“That it was then and there the duty of the defendants, Halvorson and the Northern Telephone Company, and the Northwestern Telephone Exchange Company, and each and all of them, well knowing that said Valley Meat Market was an occupant and tenant of said building of the defendant, Halvorson, and that its customers and invitees might easily and readily thus enter said doorway and be precipitated down said stair into said basement, to their great injury, through mistake or inadvertence, while going to, and in attempting to enter, and under the belief that they were entering, said Valley Meat Market,—to know the dangers of said dangerous place threatening such invitees and persons at, and long prior to the time that the plaintiff entered the same and was *20thereby injured, and to discontinue and abolish said dangerous place and wholly remove its dangers and safeguard plaintiff from said dangers, instead of negligently and unlawfully permitting the same to remain as such dangerous place and pitfall, to entrap this plaintiff and others; that the defendants had, for a long time prior thereto, as plaintiff has subsequently been informed and believes, negligently and carelessly and in violation of said ordinance, permitted said danger and dangerous place to exist.”
¶16The ordinance pleaded, provides: “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, or any 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 cellar, 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.”
¶17It is alleged that the defendants, each and all of them, did, on February 19, 1917, unlawfully and in violation of said city ordinance, keep and maintain said premises in the aforesaid condition, with the cellar door, doorway entrance and stairway, in an insecure and unsafe condition, so that the plaintiff did fall into the cellar, through the door entrance and down the stairway.
¶18The foregoing substantially sets forth the substance of the complaint. The question presented is (assuming the truth of all that is stated in the complaint), Has plaintiff a cause of action ? Oiu’ answer to this question must be in the affirmative. We are fully convinced the complaint stated a cause of action, and that the district court erred in sustaining the demurrer to it.
¶19Leaving the ordinance aside for the present,, we will first determine whether the complaint states a cause of action, exclusive of it; in other words, Does the'complaint state a cause of action against plaintiff, at common law? We think it does. We think the allegations of the complaint were sufficient to show a cause of action against the defendants for negligence. In other words, that the negligence of the defendants, as alleged in the complaint, is actionable.
¶20We think it was the duty of the defendants to use ordinary care to *21keep the premises in question in such proper condition of safety, and to keep it free from the existence thereon of any dangerous condition, so that anyone, rightfully entering or being thereon, and while using ordinary care, would be reasonably safe in person.
¶21The complaint shows there are two doors on the south side of the building, about 30 feet apart. The doors are similar in exterior appearance, so that one desiring to enter the meat market might easily assume the door opening into the basement was the one opening into the meat market.
¶22The door of the basement opened to a place of great and immediate danger, while, for the purposes of this appeal, the door to' the meat market must he presumed to have opened to a place of safety. To maintain these entrances in this way, and so that the entrance to the dangerous place might readily be taken as the entrance to the place of safety, constituted actionable negligence.
¶23It was the duty of the owner of the premises, if he were to maintain an entrance to the basement, to have it in such condition that it was not a constant source of danger to any person, or the public, who might inadvertently make the reasonable mistake of assuming the entrance into ihe basement was that into the meat market..
¶24The stairway leading into the basement was adjacent to the door. The owner must have known, or must be held to have known, that, if anyone inadvertently opened that door and stepped forward, as if to enter the meat market, where the door was similar in appearance, that he would be precipitated, with great force and violence, down such stairway of the basement. • ¡.
¶25The danger was hidden, so that any person, inadvertently entering, could not know the danger. The door was an invitation to enter; it was not locked, nor was there any sign thereon, giving any warning of danger.
¶26If there had been no stairway, or, if the door opened into an elevator shaft, it would hardly be contended that defendant was not guilty of negligence; yet, if either of those conditions existed, it would scarcely be more dangerous than that which actually existed.
¶27It appears plain that it was the duty of the defendants to keep and maintain the entrance in question in such safe condition as to protect *22anyone from injury who might inadvertently enter, in the circumstances in which plaintiff therein entered.
¶28The meat market was a place of business where anyone, and the public in general, might make purchases and transact the kind of business that was carried on there, and the plaintiff, as well as others, had a lawful right, in common with others, to enter the meat market and make such purchases as she desired; and while entering there, she was in no sense a trespasser, for she did not go on the premises to do an unlawful act, nor to do a lawful act in an unlawful manner; but she was lawfully on the premises to do a lawful act; she was not a mere licensee, as she had a lawful right to enter and be upon the premises, for the purpose of doing such business as was conducted on it, and which she, in common Avith the general public, were invited to do.
¶29The premises were in part used for the conducting of the meat market thereon; it Avas conducted with the knowledge and consent of the owner of the property; ho intended that business to be conducted there. The conducting of it Avas an implied invitation to the plaintiff, and all others who might desire to transact business there, to enter' upon the premises. In such case, the owner is under obligation to use ordinary care to effect the reasonable security of those Avho do enter for the purposes of the invitation, and for the transaction of the business to which the invitation related.
¶30In such case, it Avas the duty of the owner to use ordinary care to keep the premises in a safe condition, in order that no injury might be suffered by those invited, while they were on the premises.
¶31The plaintiff had a laAvful right to enter upon the premises, the same as she had a right to enter any other place of business open to the public ; and she intended to enter the meat market when she inadvertently entered the door to the basement.
¶32Taking up now the consideration of the question of whether or not plaintiff has a cause of action, by reason of the violation of the ordinance-above set forth, resulting in injury, on the theory that such is negligence of the owner and occupants, under that part of the ordinance which provides: “Nor shall it be lawful for any person to suffer any such cellar, 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, *23or be otherwise injured by the same,” we think she has a-cause of action.
¶33We think the complaint sufficiently shows that the door at the entrance of the basement was in an insecure and unsafe condition, so that persons might fall into, or be otherwise injured by the same, for there was nothing to prevent anyone from inadvertently opening this door and stepping into the basement, while their thought would be, they were entering the meat market.
¶34There is nothing to show there was any notice on the door, such as “Not for public use” or “Keep out,” such as might be some notice to the public, but we must assume that the doors were entirely unprotected and unguarded, and that the public had no notice of the dangerous condition existing. •
¶35It is apparent that the door itself was no protection, for if the door had not been there, the danger would have been apparent. It would seem that the entrance was more dangerous with than without the door, for with the door the danger was hidden.
¶36We are of the opinion that the maintaining of the entrance to the • basement, in the dangeroxxs condition that it was maintained, was a violation of that part of the ordinance particularly referred to, and, as such, constitutional actionable negligence; and that the complaint, in this regard, states a cause of action.
¶37For the foregoing reasons, we think, the demurrer should have been overruled.