In our opinion, the plaintiff, who accompanied the owner of the stored car for the purpose of becoming a passenger in the car with the owner, was entitled to the same status as the owner. Kelley v. Goldberg, 288 Mass. 79, 192 N.E. 513; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970; Donohue v. Erie County Savings Bank, 285 N.Y. 24, 32 N.E.2d 777. Appellant also contends that the evidence failed to show that the dangerous condition had existed a sufficient length of time to enable appellant to know of its existence and in the exercise of ordinary care to have corrected it. Hill v. Castner-Knott Dry Goods Co., 25 Tenn. App. 230, 166 S.W.2d 638; Illinois Central R. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213. But this is not a case of danger resulting from a foreign substance on the floor placed there through the actions of a stranger, the presence of which would not reasonably be anticipated by the owner.
There was no chain across the shaft because the attendant had taken it off while using the elevator to get Mr. Pierce's car from an upper floor. It is the appellant's contention that the evidence summarized above fails to prove any breach of duty owed by it to Mrs. Bollinger. Undoubtedly Mr. Pierce's relation to the defendant was that of a "business visitor" as that term is defined in A.L.I., Restatement, Torts, § 332. and the Bollingers, as friends who accompanied him for the purpose of becoming passengers in his car, had the same status as did he. Id., Comment (d); Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970; Donohue v. Erie County Savings Bank, 285 N.Y. 24, 32 N.E.2d 777; Kelley v. Goldberg, 288 Mass. 79, 192 N.E. 513; Wingrove v. Home Land Co., 120 W. Va. 100, 196 S.E. 563, 565, 116 A.L.R. 1197. Had the accident happened because of a dangerous condition existing in the driveway giving access to the office, the defendant's duty would be clear. A.L.I., Restatement, Torts, § 343. But the situation is far different when a business visitor is injured in a part of the premises not held open for business purposes.
Defendant never in any manner raised at the trial the point now urged — that is, as to the failure of the court to charge the paragraph numbered 3 in section 1052 of the Penal Law. Nowhere in the record is any such matter even mentioned. The "exception" quoted in Judge FOSTER'S opinion was not sufficient for such a purpose and, indeed, it conveys to me no meaning at all. The absence of an exception to the charge is an absolute and jurisdictional bar to the consideration by us of an alleged error in the charge in a noncapital criminal case (Code Crim. Pro., § 420-a; People v. Feld, 305 N.Y. 322, 332; cf., as to civil cases, Civ. Prac. Act, § 446; Donohue v. Erie County Sav. Bank, 285 N.Y. 24, 27). Judges DYE, FULD, VAN VOORHIS and BURKE concur with Judge FOSTER; Chief Judge DESMOND dissents in an opinion in which Judge FROESSEL concurs.
Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 285 N.Y. 24.)
We think the parking of the car on the incline as disclosed by the evidence constituted an act of affirmative negligence. But the plaintiff was on the premises at the implied invitation of the defendant's tenants, at least the jury could have so found. ( Donohue v. Erie County Savings Bank, 285 N.Y. 24, 26.) Obviously the plaintiff was not a trespasser while he was engaged in the act of rescuing the defendant. He was under an obligation to her to make the effort if he reasonably could do so.
There is some evidence tending to establish that the plaintiff was an invitee of the defendant's son. ( Bowers v. City Bank Farmers Trust Company, 282 N.Y. 442; Donohue v. Erie County Savings Bank, 285 N.Y. 24.) All concur. (The judgment dismisses plaintiff's complaint at the close of the case in an automobile negligence action.)
( Heskell v. Auburn Light, Heat Power Co., 209 N.Y. 86, 92; Vaughan v. Transit Development Co., 222 N.Y. 79, 82; see, also, Restatement, Torts, 2d ed., Tentative Draft No. 5, § 332, comment a.) The law recognizes, however, that a tenant's presence on the premises is for the benefit of the landlord; for this reason a licensee or social visitor of a tenant is, as to the landlord, an invitee ( Donohue v. Erie County Sav. Bank, 285 N.Y. 24; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442; Parnell v. Holland Furnace Co., 234 App. Div. 567, affd. 260 N.Y. 604; Petersen v. Crawford, 263 App. Div. 617; Porcelli v. Amodeo, 145 N.Y.S.2d 761; Restatement, Torts, 2d ed., Tentative Draft No. 5, § 332, comment k). No evidence was introduced concerning a landlord-tenant relationship between the Gutts as occupants of an apartment and the store premises owners, or of such relationship between the store tenants and the store premises owners, but for purposes of the present motion, that relationship may be inferred from the occupancies. However, a tenant's visitor can become the invitee of the landlord only with respect to those parts of the premises held open by the owners to the tenants and their visitors.
In our opinion, the plaintiff, who accompanied the owner of the stored car for the purpose of becoming a passenger in the car with the owner, was entitled to the same status as the owner. Kelley v. Goldberg, 288 Mass. 79, 192 N.E. 513; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970; Donohue v. Erie County Savings Bank, 285 N.Y. 24, 32 N.E.2d 777." ( 219 F.2d at page 255.)