51 Ind. App. 614 | Ind. Ct. App. | 1912
— This is an appeal from a judgment for $400 in favor of appellee for personal injuries alleged to have been sustained by him in falling through an elevator open
The material averments of the complaint are in substance, as follows: On January 30, 1907, and for a year or more prior thereto, defendant was and had been in possession and control of a certain two-story and basement building, situated on Main street in Thorntown, Indiana, all of which building during said time was occupied by him as a general hardware store; that by solicitation and advertisement defendant was inviting and did invite the general public to enter said store and premises, and purchase such merchandise as he kept therein for sale; that on said day, and for many months prior thereto, defendant kept, maintained and managed a certain elevator in said store for the purpose of elevating and lowering freight and passengers from the basement to the second or top floor, and from floor to floor of said building; that said elevator was so arranged that it passed through the first or ground floor, and down to the bottom of the basement of said building; that the platform of said elevator and the opening for the passage of said elevator through the first or ground floor were about eight feet square; that the distance from the ground floor to the basement floor of said building was about eight feet, and the distance from the ground floor to the second floor was about fourteen feet; that the elevator was about the center of the east side of said building; that defendant had negligently and unlawfully failed to place guards or railing around the spaces or openings in the floors where said elevator passed through said floors, and that said aperture was so unprotected on January 30, 1907, at which time plaintiff entered said store and building, on the first floor thereof, for the purpose of buying merchandise of defendant; that the place where said elevator was located was very dark, and
In support of the contention that the complaint is insufficient, appellant insists that it fails to state, (1) that appellant owed appellee any special duty to guard the elevator, to keep lights burning or to warn him of danger; (2) that the elevator was in that part of the store provided by appellant for the use of his customers in entering or leaving the store, or in the purchase or inspection of goods; (3) that the place in said store to which appellee was “conducted and invited” by appellant was a dangerous place; (4) that appellee could not have discovered the elevator by the use of ordinary diligence and caution; (5) that the condition of the elevator or the acts of appellant were the proximate cause of the injury; (6) that appellee was “conducted and invited by appellant to a point near where said elevator was situated, ’ ’ for the purpose of buying or inspecting goods.
The case at bar differs from this line of cases, in that this complaint proceeds on the theory that appellee when injured was on appellant’s premises, and that he was at the place where injured at the invitation of appellant: The court in the case of East Hill Cemetery Co. v. Thompson, supra, at page 1038, said: “ An invitation is implied where some benefit accrues or is supposed to accrue to the party extending the invitation, or is in the interest of both parties, or consists in going upon premises upon the business of the owner’ [Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 116, 88 N. E. 1073, 89 N. E. 485].”
In the case of Thiele v. McManus, supra, the court at the conclusion of its opinion said concerning the complaint: “Nor is there anything to show that appellant by reason of any relation it sustained to the appellee was in duty bound to furnish him safe conduct through the premises such as he insists it was obligated to furnish him.” The reason that the court made this observation was, as the opinion shows, because the averments of the complaint failed to show that the injured party was on the premises where injured at the invitation of the party charged with the injury, but that so far as affirmatively appeared from such averments he may have been on the premises as a trespasser or as a mere licensee.
The averments of the complaint at bar show not only that appellant was engaged in a business in a place to which the public generally was invited to trade, but it goes further and avers, in effect, that appellee went there as a customer to buy an article kept by appellant for sale, that he advised appellant as to the purpose of his visit, and ap
This complaint avers, in fact, that appellee was without fault or negligence, and it cannot be said that the specific averments affirmatively show that he was guilty of any negligence contributing to his injury. The causal connec
The brief in this respect evidences an entire lack of effort to comply with Rule 22 of this court, in so far as it attempts to present any question raised by the grounds of the motion for new trial, and for this reason such questions, under the repeated decisions of this court and the Supreme Court, will not be considered. Albaugh Bros., etc., Co. v. Lynas (1911), 47 Ind. App. 30, 93 N. E. 678; Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 293, 294, 69 N. E. 546, and authorities cited; Thieme & Wagner Brew. Co. v. Kessler (1911), 47 Ind. App. 284, 94 N. E. 338; Schrader v. Myers (1911), 48 Ind. App. 36, 95 N. E. 335, and authorities cited.
Judgment affirmed.