The appellant prosecuted this action in the court below for the recovery of damages in the sum of twenty thousand dollars, alleged to have been sustained by falling into an open elevator shaft upon the premises of the appellees. The issue was joined by a general denial, and in the submission of the cause the court instructed the jury to return a verdict in favor of the appellees. This action of the court is here submitted for review.
The appellees were retail merchants in the city of Terre Haute, their store-house fronting on Wabash avenue and extending north one hundred and forty-one feet and ten inches, with an alley on the west sixteen feet in width. In the northwest corner of the building, on the first floor, was a freight room extending north and south eighteen feet and eleven inches, and being seven feet and eleven inches in width. To this room double doors opened from said alley, and immediately south of this room was the shaft of the freight elevator (where the injury was sustained), occupying the full width of said freight room. Immediately south of the elevator was a vestibule entrance to the store room. To the elevator shaft was an entrance, on the south, of four feet in width by seven feet in height, and a like entrance from the freight room, four feet and nine inches wide, and directly opposite the entrance from the sales room. The vestibule entrance to the sales room opened immediately south of the west side of the sales room entrance to the freight elevator, and from this entrance one could pass behind a dry goods counter, on the right, into
On the alley, and next to the store house, was a walk of stone flagging, thirty inches wide, sixty-eight feet and ten inches long, and extending north from Wabash avenue. Prom the north end of this walk to the vestibule entrance it was forty feet and two inches, without paving.
On the occasion of appellant’s visit to appellees’ store room, he was seeking a drayman to haul some of his goods, not connected with appellees’ business, and learning that John Bums, the owner of a transfer wagon, was in the rear of appellees’ store, .went to the alley and saw the wagon at the entrance to the freight room. Going up the alley, he could not see Burns, and presuming that he was in the building, stepped in at the vestibule entrance. He immediately turned facing the two openings to the elevator shaft, and seeing some person in the freight room, asked for the drayman and received an answer from the freight room that he was in there. At once appellant started into the freight room through said openings and fell through the shaft, neither of the openings to which was guarded or protected by barriers.
All of the foregoing facts are undisputed.
There are some controverted facts as to the character of lights near the shaft and as to the extent of the darkness within the shaft, facts, from the appellant’s theory of the case, essential to the charge of negligence against the appellees. There were also controverted facts as to appellant’s vision having been so obscured by the sudden change from the bright sunlight without and the softer lights and the shadows within the building, and probably as to other matters, but all having reference to
Numerous authorities are cited, by the appellant, to the proposition that in a case involving questions of negligence, the court is'not at liberty to take such questions from the jury, but must leave them to the jury for decision. Of the cases so cited are Indiana Car Co. v. Parker,
These cases all belong to that class where a question of fact is controverted, and that question is one necessary to plaintiff’s recovery, or essential to the defendant’s proper defense. None of them hold that the jury are the exclusive judges of the existence or nonexistence of negligence as an ultimate fact. A moment’s reflection will show the error of a rule which would deprive the court of the right to determine whether a given state of facts —uncontroverted—does or does not constitute actionable negligence. When the facts are submitted to the court upon demurrer to a complaint, the court exercises the power of determining whether such facts, if proven, will constitute actionable negligence. When, under the practice prevailing, the jury does not return a general verdict, but returns findings of fact by special verdict, the court must determine whether the facts so found are sufficient to warrant the conclusion of the existence of negligence. When, during the trial, the court is called upon to instruct the jury, there is, that we now recall, but one limitation upon the duty to charge that a given state of facts, if found by the jury to exist, does or does not authorize the finding of negligence, and that exception is where the facts, clearly established, are such that one man,impartial and of good judgment,might reasonably infer that negligence existed, while another man, equally
Some of the authorities cited expressly recognize the existence of cases where the court may take the question from the jury.
In Weis v. City of Madison, supra, p. 254, it is said: “There are cases where the court may rightfully direct a verdict. A judge is not bound to submit a question to a jury, where their verdict, if contrary to his views of the testimony and its legal effect, would be certainly set aside, as clearly against the law and the evidence. Dryden v. Britton,
In Indiana Car Co. v. Parker, supra, it is said: “There are, no doubt, cases where the court will determine the
The case of Koerner v. State, supra, holds that the court lias not the right, in charging the jury, to assume the existence of some essential fact. But it is said “where the existence of a fact is established without any conflict, contradiction or dispute,” it is not error to assume the existence of such fact.
In the Work of the Advocate, supra, Judge Elliott says: “Where the plaintiff wholly fails to make out a case, the defendant is entitled to an instruction directing the jury to return a verdict in his favor. If the evidence of the defendant entirely answers and overthrows that of the plaintiff, not leaving him a prima facie case, the former is entitled to an instruction requiring the jury to give him the verdict. On the other hand, if the defendant’s evidence wholly fails to meet that of the plaintiff, or to establish any affirmative defense, it is the plaintiff’s right to have the jury so instructed. Neither party is, however, entitled to such an instruction where there is a conflict of evidence upon a material point.”
Is this a case where, under the rules quoted from the ¡authorities cited by the appellee, the court had the right 4o direct a verdict for the defendant?
In every case involving actionable negligence, there are necessarily three elements essential to its existence: 1. The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; 2. A failure by the. defendant to perform that fluty; and, 3. An injury to the plaintiff from such failure of the defendant.
When these elements are brought together, they ¡unitedly constitute actionable negligence. The absence
As a question of evidence, the facts are given to the jury, and if there is no evidence whatever as to one of the three elements, then, as a question of law, the plaintiff has failed, and the court may direct a verdict for the defendant. Or if there has been evidence as to one of the three elements, and that evidence is not conflicting, but is free from dispute, the jury has no office to perform in reconciling a conflict, and if left to return a verdict, and it should be for the plaintiff, the court would, if the unconflicting evidence of that one element was not sufficient to establish the element, set aside the verdict as not supported by the evidence. If, before the retirement of the jury, the court shall see that the evidence, so without dispute, is insufficient to prove the one element to which it is addressed, the court may direct the verdict, because a finding for the plaintiff would not be supported by the evidence.
If this case is with the appellees, it must be because the appellant failed to establish one of the elements essential to the conclusion of actionable negligence, by evidence free from such conflict, as required the jury to weigh it and adjust the differences between witnesses, or because, giving the whole evidence the most favorable construction, and the most favorable yet reasonable inferences in his behalf, it fails to establish the element in question. Mann v. Belt R. R. and Stock Yard Co.,
Taking the undisputed facts as we have stated them, and according to them all reasonable inferences in appellant’s favor, the first inquiry naturally suggesting itself is, did the appellees owe to the appellant a duty to protect him from the dangers of the open elevator shaft?
Again, in Thiele v. McManus,
We regard the case just quoted as stronger than the case before us, for the reason that the hatchway through which the injury was sustained was located in the walkways provided for customers, and not, as in this case, behind a counter, and as a connection between the room to which customers were invited and a freight room, to which there is no evidence and no reasonable inference that the appellant was invited. It is not a natural inference that an invitation, express or implied, to visit the store as a customer carried with it the privilege of entering the store from an alley and of going into a freight room separated by walls and cut off from the sales room by the freight elevator. There is no claim that there was an express invitation to appellant to visit the store, to enter through the alley, or to go into the freight room. There is ho reason to infer from any evidence in the cause, or from any claim of counsel for appellant, that he could any more presume upon the right of a customer
An injury sustained from defective machinery, by one visiting a coal shaft to secure employment, was held to-create no liability, the visitor being only a licensee. Larmore v. Crown Point Iron Co.,
In Converse v. Walker,
Bedell v. Berkey,
The case of Trask, Admr., v. Shotwell,
In Indiana, etc., R. W. Co. v. Barnhart, supra, it is said by this court: “Where a person has a license to gO'
In the case in review, there is no claim of an express invitation, and we can not imply an invitation to the appellant to there search for a drayman, from the mere fact that appellees were engaged as merchants, with their doors thrown open to purchasers, or, possibly to those who go
“From-shop to shop
Wandering, and littering with unfolded silks
The polished counters.”
Judge Charles A. Ray, formerly of this court, in his excellent work on the Negligence of Imposed Duties (pp. 18, 19), says: “The keeper of a public place of business is bound to keep his premises, and the passage ways to and from them, in safe condition, and use ordinary care to avoid accidents or injury to those properly entering upon his premises on business. But this rule only applies to such parts of the building as are a part of, or used to gain access to, or constitute a passage way to ánd from, the business portion of the building, and not to
In Bennett v. Railroad Co.,
We find no error in the direction of a verdict for the appellees, and the judgment of the lower court is affirmed.