99 P. 1063 | Mont. | 1909
delivered the opinion of the court.
Action for damages for a personal injury. At the time the injury occurred plaintiff was of the age of sixty-eight years. He had been engaged in farming and stockraising, and other pursuits requiring manual labor. The defendant is a merchant residing at Fallon, Custer county, where he keeps for sale a general stock of goods, wares, and merchandise, soliciting the patronage of the people residing in that vicinity and the public generally. The main room of his store building is seventy-five feet in length by twenty feet in width. Underneath is a cellar, reached by a cellar or stairway leading down from the storeroom, through an opening in the floor. This opening is covered by a flapdoor when the stairway is not in use. The room is fitted up with conveniences for displaying and selling wares to customers. Two parallel counters extend from the front most of the distance to the rear of the room, leaving an aisle or passageway along the middle. In the space beyond the end of the counter on the right to one entering from the front is a stove for heating purposes, around which in cold weather customers gather for warmth. The opening by which the cellar is reached is also in this space, along the side of the room in close proximity to both the stove and the end of the counter. When the stairway is in use, the flap is lifted and thrown back against the right side of the building. On March 31, 1905, plaintiff drove from his home to the store of defendant to purchase goods. On his arrival he entered by the front door. After alleging these facts in substance, the complaint proceeds: ‘ ‘ That he [plaintiff] approached the said defendant, who was standing in the center of the said storeroom, and greeted the said defendant and shook hands with him, and, being cold, advanced from the place where he was and from where the said defendant was standing, along the open public passageway in the said
The answer admits that the plaintiff fell into the eellarway as alleged, but denies that the injuries sustained were serious or resulted in permanent disability. It is alleged that the fall was the result of plaintiff’s own want of care and circumspection, and as a separate defense defendant charges contributory negligence. Plaintiff had verdict and judgment. Defendant has appealed from the judgment and an order denying him a new
1. The first contention made is that the complaint does not state a cause of action, in that it discloses the fact that the injury was caused by plaintiff’s own act, and it is nowhere alleged that he was at the time exercising reasonable care and circumspection, or that he was himself free from fault. Counsel invoke with confidence the rule laid down by this court in Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21, that, if the complaint shows that the plaintiff’s own act was the proximate cause of his injury or proximately contributed thereto, it will be held insufficient unless it goes further and by appropriate allegations shows that the plaintiff was at the time exercising ordinary care and circumspection. The rule declared in this .case has been repeatedly recognized by this court. (Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Nord v. Boston & Montana Con. C. & S. Min. Co. 30 Mont. 48, 75 Pac. 681; Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940.) It is based upon the obviously just principle that one who has brought injury upon himself by his own act cannot lay responsibility for it upon another unless he can allege and show that the act causing the injury was impelled by the apparent necessities of a perilous condition brought about by the negligence of such other person. It does not apply to cases where the plaintiff has been injured upon going into a place where he has a right to go, by some hidden or unknown cause, of the existence of which it is the duty of the person having control of the place to give him warning.
The facts alleged show that the plaintiff was not a mere licensee upon the defendant’s premises by his silent acquiescence. If this were so, defendant would not have owed him any duty, other than to refrain from doing him willful or wanton injury after being informed of his presence. (Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373; Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 Pac. 831.) He was there to purchase goods in response to an invitation, it matters not whether express or implied, extended to all persons in the vicinity and to the pub-
Judge Cooley, in the third edition of his work on Torts (Yol. 2, p. 1259), says, that when one “expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.” In Carleton v. Franconia Iron & Steel Co., 99 Mass. 216, the court, through Mr. Justice Gray,
Recurring to the question at issue, it appears with certainty: That the plaintiff was at defendant’s place by invitation as a customer, to purchase goods; that he was in ignorance of the existence of the cellarway; that it was in close proximity to a place to which customers were expected to go; that the defendant was standing by and had notice of plaintiff’s presence; that the cellarway was open and unguarded; that defendant failed to notify him of this fact. This, together with the preceding statement of facts showing the surrounding circumstances, was sufficient to show a duty on defendant’s part to warn, by neglect of which he put himself in the wrong, and therefore upon his defense. Plaintiff was not under obligation to keep constant
2. It is earnestly contended that the evidence is insufficient to sustain the verdict, both because it fails to show that the defendant was at fault, and because it shows affirmatively that the plaintiff was guilty of contributory negligence; but this contention must be overruled. The evidence on the part of plaintiff shows: That, on arriving at the store after driving from his home, he entered by the front door; that, the day being cold, he was bundled up with wraps; that he proceeded along the main aisle or passageway to the end of the counter to reach the stove to warm himself; that he had made use of the stove before for this same purpose and had observed others do it; that he met the defendant at the end of the counter on his right, and shook hands with him; that defendant was standing immediately between the end of the counter and the cellarway and knew that the latter was open; that he did not warn the plaintiff; that that portion of the store was somewhat dark; that plaintiff could not see distinctly because he had come from the light into the darkness, and his eyes had not become accustomed to the change; that he passed on immediately to reach the stove and, not seeing the cellarway, fell into it. The defendant testified that, as he shook hands with the plaintiff, he warned him that the cellarway was in use and open, but that he paid no attention to him. The questions whether the defendant was guilty of negligence in failing to warn the plaintiff, or whether in fact he did warn him, and whether the plaintiff was himself guilty of contributory negligence, taking into consideration all the circumstances, were for the jury, and their finding thereon must be held conclusive.
Some contention is made that the evidence does not show that the plaintiff suffered any serious injury. His testimony tended to show that his shoulder was dislocated, and that he has since been disabled so far that he cannot attend to business of any character, and that his disability has been attended by a great deal of physical pain. It was a matter for the jury to deter
3. At the close of plaintiff’s case defendant’s counsel moved the court to withdraw from the jury the question of damages for loss of earning capacity, for that no sufficient evidence, or any evidence, had been introduced upon which an estimate could be based. This motion was denied. It is argued that this action of the court prejudiced the defendant. There was in fact no-evidence offered on this subject; the only statement made by the plaintiff being that he had not been able since the accident to pursue his occupation of farming and stockraising, but whatever work he had had done he had been compelled to hire a man to do it. Among the instructions we find the following: “You are instructed in this case that, the plaintiff having failed to produce any evidence in relation to the difference between his earning capacity prior to the accident and his earning capacity thereafter, you cannot consider his loss of earning capacity in reaching a verdict in this case.” While it may be conceded that the motion should have been granted, the instruction quoted accomplished the purpose of the motion fully, and the defendant suffered no prejudice. If he was liable at all, the plaintiff was entitled to have damages awarded to him such as would fairly compensate him for all the detriment proximately caused by the injury suffered. (Revised Codes, see. 6068.) One of the' elements to _be taken into consideration was the disability to-pursue his usual vocation. This- element does not include compensation for loss of earning capacity. In a given ease the plaintiff’s earning capacity may be so small as to be a negligible-element in making up the estimate, yet the destruction of his capacity to pursue his established course of life is nevertheless a deprivation for which he is entitled to compensation.
4. Contention is made that the court erred in refusing to submit several instructions requested. Upon careful attention to the several assignments in this connection, we conclude that no prejudice was done. For example, request was made for the following: “ (35) If you believe from the evidence in this case
Let the judgment and order be affirmed.
Affirmed.