24 Ind. App. 401 | Ind. Ct. App. | 1900
Appellee sued appellants for injuries sustained by her in consequence of falling down an elevator shaft on premises owned by appellant Rhodius, and by her leased to appellant Emminger, who used said premises for saloon purposes. A trial by jury resulted in a verdict in favor of appellee against the appellants for $2,000. With the general verdict, the jury returned answers to interrogatories. Judgment was rendered on the general verdict for the amount fixed therein. The appellants have assigned
The first specification in the assignment of errors is not the subject of an independent assignment, but is a reason for a new trial. Upon another ground the merits of the question sought to be thus raised can not be considered, because appellants, by the introduction of evidence after the court had refused to instruct the jury to find for them, waived their motion. Elliott’s App. Proc. §687; Geary v. Bangs (Ill. Sup.), 27 N. E. 462; Grand Trunk R. Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. ed. 266.
It is insisted by counsel for appellee, before entering upon the discussion of the second assignment, viz., the overruling of appellants’ motion for judgment in their favor upon the answers given by the jury to the interrogatories propounded, that no question is presented, because it does not appear that the interrogatories and answers were filed, or in any way made a part of the record. In this view we can not concur. The statute, §555 Burns 1894, §546 Horner 1897, provides that interrogatories propounded to the jury are to be recorded with the verdict. It clearly appears from the record that this was done.
It is contended by counsel for appellants that the answers to interrogatories can not be made to harmonize with the general verdict upon any hypothesis. This position is based upon the claim that these answers showed that appellee saw the place into which she afterwards stepped was dark; that she had sufficient time to look and ascertain the kind of
In passing upon this question, it must be remembered that every presumption will be indulged in favor of the general verdict. It finds that appellee was without fault proximately contributing to her injury; that she was at all times exercising due care; that at any point where she appeared not to have exercised the care required of an ordinarily prudent person under the same circumstances there were facts or circumstances indicating that she did exercise such care; and that “if, taking all the special findings together and adding to them any other fact that might have been proved under the issues, an irreconcilable conflict with the general verdict can be avoided, the answer to the interrogatories will not be allowed to control.” Under the issues, other facts might have been proved, and the seemingly irreconcilable conflict claimed to exist have been avoided. Besides, appellee was not required to look at every place she stepped. She had the right to rely upon appellants’ keeping their premises in a reasonably safe condition for those invited upon them.
In Amidon v. Gaff, 24 Ind. 128, the court said: “The special findings override the general verdict only when both cannot stand, and this antagonism must be apparent upon the face of the record, beyond the possibility of being removed by any evidence legitimately admissible under the issues, before the court can be successfully called upon to direct judgment in favor of the party against whom a general verdict has been rendered by a jury upon their oath.”
In Pittsburgh, etc., R. Co. v. Martin, 82 Ind. 476, there was a general verdict, with answers to interrogatories. It appeared from the answers to the interrogatories that the plaintiff was driving upon a highway approaching the track of the defendant, and before he arrived at the track he
In Stevens v. City of Logansport, 76. Ind. 498, appellant, who was the plaintiff below, in the night-time, when it was too dark to see the condition of the street, made a rapid succession of steps or leaps ffom six to ten feet each in crossing the street in a locality in which he was not familiar, and alighted in a ditch, causing himself injury. The trial court rendered a judgment on the interrogatories against Stevens, who had received a general verdict in his favor. The Supreme Court reversed the judgment, saying: “The rule is settled by a long and unvarying line of decisions, that the general verdict shall not be controlled by the answers to interrogatories, if reconcilable therewith upon any supposable state of facts provable under the issues in the case. Higgins v. Kendall, 73 Ind. 522. It necessarily follows that, in considering whether the facts specially found are irreconcilable with the general verdict, no reference can be made to the evidence actually adduced on the trial. The question to be decided is not whether, in the light of the evidence adduced, the general verdict is inconsistent with the facts found; the remedy in case of such an inconsistency is a new trial. But, upon the motion for judgment non obstante, the general verdict prevails over the special findings, if there could have been, under the issues, proof of supposable facts, not inconsistent with those specially found, suffi
The third specification in the assignment is not the subject of an independent assignment. Stonewall v. Thomas, 76 Ind. 506. It is, however, given as a reason for a new trial, but is not discussed.
Under the fourth specification of the assignment of errors, appellants’ counsel discuss the first, second, third, twenty-third, twenty-sixth and twenty-seventh reasons for a new trial. The other reasons are, under the rule, waived. The first, second, and third reasons given in the motion for a new trial are, respectively, that the verdict of the jury is contrary to law; is contrary to the evidence; and not sustained by the evidence. In support of these reasons counsel for appellants contend (1) that the evidence shows that appellee was guilty of negligence contributing to her injury; (2) that appellants were not negligent; that the fact that appellants, or one of them, through his or her servants, left the elevator door unlocked and open was not negligence.
The entrance is through a hallway nearly twenty feet long, which is divided into two parts about the middle, connected by a doorway; the door, at the time of the accident being off the hinges. The hall had a high ceiling. The hall was in the rear of the saloon, with no light entering it except from the door at Court street and what light found its way from the front of the saloon. It was on a bright day in
“In cases involving questions of negligence, the rule is now settled that, where the facts are undisputed, and the inferences which may be drawn from them are not equivocal, and can lead to but one conclusion, the court will adjudge as matter of law that there is, or is not, negligence. While in cases where the facts are disputed, or where they are equivocal and different inferences can reasonably be drawn from them, the question of negligence must be determined by the jury under proper instructions.” Shoner v. Pennsylvania Co., 130 Ind. 170, 177, and cases cited.
In view of the fact that the general verdict involved the finding that appellee was free from fault contributing to her injury, and that appellants were guilty of negligence, can we say that only one inference can hemda^onably drawn from the foregoing facts, which are undisputed, and that inference that she was negligent, or not ekejrcisjng the care which would, under the circumstances, havievbeen used by an ordinarily prudent person? , Lr:;l -up
The question to be determined from the evidence is whether appellee was proceeding as an-ordinarily prudent person would have proceeded under the circumstances. The open doorway, if not an invitation to enter was certainly not a warning of danger. What is duel care must depend upon circumstances. As stated in McRickard v. Flint, 114 N. Y. 222, the facts in which were very much like those in the case at bar, Mcrickard attempted to enter the manufactory of the defendant and seeing a door partly.
In Tousey v. Roberts, 114 N. Y. 312, the elevator causing the injury was in the hallway at such a point as that it was a disputed fact whether or not at the time of the injury an artificial light was necessary. The elevator door was opened by a boy, and the plaintiff, failing to observe that the car was not in place, stepped in, and was injured. The court said: “It was not, as a matter of law, contributory negligence in the plaintiff to pass through the door without stopping to look and listen. An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger, to be approached with great caution; but, on the contrary, it may be assumed when the door is opened by an attendant, to be a place which may be safely entered without stopping to look, listen, or make a special examination.” While, in the case at bar, the door was not opened by any one in the presence of appellee, it was standing open.
In Camp v. Wood, 76 N. Y. 92, the defendant owned a three-story building, upon the third floor of which was a hall which he rented for dancing. The hall was reached by two stairways, the one above the other. In front of the foot of the stairway on the second floor a hallway led to a door opening on a porch or awning, just in the same manner as the door on the first floor in front of the foot of the first stairway opened on the street. The door on the second floor was left unlocked. The plaintiff attended a dance, and came down the upper stairway on the second floor, walked out through the unlocked door onto the porch, and walked off, and was injured. The court held that the case was properly submitted to the jury, and the verdict sustained, although the evidence showed that the plaintiff'was
In Brosnan v. Sweetser, 127 Ind. 1, the opening into which plaintiff fell and was injured was directly in front of her; she had good eyesight, and, if she had been looking¡ where she was stepping, — as it is insisted the appellee in the case at bar should have been looking, — she would not have fallen through the trap-door. It was in a store, where the people were in the habit of passing, and a clerk had been detailed to guard it, and there was testimony showing that the clerk had called to the plaintiff, warning her of the danger. The court held that the plaintiff in that case was not guilty of negligence, although she might, by using Ker eyesight, have avoided injury, and they put their decision upon the ground that she was at a place where an ordinarily prudent person would suppose there was no danger, and therefore she was not required to exercise such a degree of care as to look where she was stepping. The appellee in the case at bar was, at the time of her injury, at a place where she had a right to expect that dangerous pitfalls would be properly guarded, and she went through a door that was standing partially open, so as to indicate that it. was not at a dangerous.place, and which door was located where one would naturally expect to find a passageway leading to a room. It should be remembered that the place where appellee herein was injured was a place where the public was invited to come and take seats in the rooms off to the right of the entrance from the rear for the purpose of taking refreshments. It is proper to remember that there was no light burning in the passageway, nor in the elevator shaft below, and that, having just entered the hall from the bright light outside, everything within would appear the less distinct to her.
Cincinnati, etc., R. Co. v. Claire, 6 Ind. App. 390, on p.
The reported cases are without limit as to number in which different courts of last resort have reached different conclusions on questions of negligence and contributory negligence, where the facts, as stated, were very similar in the different cases. The respective positions of counsel for appellants and appellee in the case at bar find support in many decisions. They cite many authorities without by any means exhausting the list in addition to those referred to herein. We think to give and comment upon them would unduly extend the length of this opinion without profit. They all recognize the rule by which the required care of one injured by accident, inadvertence, or carelessness is to be measured, but are irreconcilably in conflict in its application. It is seen that the conduct in one instance of an injured party is by one court held to be that of an ordinarily reasonable and prudent person under the circumstances, and like conduct by another person is by another court held to be gross carelessness. Yet the degrees of care required of a person invited into a place of business or amusement in all of them is recognized as much less than that of one crossing a railroad track, passing through a factory in which there is running machinery, or of one, the nature of whose employment exposes him to unusual danger. We have cited only a few cases as examples, stating facts from which the courts have held juries were to draw the inferences of care or prudence. They agree,
The twenty-third, twenty-sixth, an,d twenty-seventh reasons for a new trial are the giving to the jury by the court of its own motion instructions twelve, fifteen, and sixteen. The following is the language of instruction number twelve. “If plaintiff had knowledge that, in connection with the main or general business room, there were other rooms where patrons were received in connection with such business, and that such rooms were to be entered through doors opening off of passageways leading to such business room, then plaintiff had a right to endeavor to enter such other rooms, and to assume that a door similarly situated to those opening into such rooms would not be left unlocked, open, or unguarded if it led to the hatchway or elevator shaft, unless there was something which would put an ordinarily prudent person on his guard as to such matters; and the plaintiff, on opening a door so situated, woujd not be required to look or listen before stepping through such door in order to ascertain whether there was danger, unless, under all the circumstances, there was such an appearance or suggestion of danger as would put an ordinarily prudent person on guard to avoid dangers which such a person would reasonably apprehend under the same circumstances. Plaintiff cannot recover if she heedlessly, and without using due care, opened a door with which she was not acquainted, and,
Instruction fifteen is as follows: “If the passageways leading to such place of business were also used by the owner of the building, and for purposes of the owner, and the place which is alleged to be dangerous was used as well for the purposes of the “owner as of the tenant, then the owner was also under obligation to use the care herein defined, if the owner had reason to believe that patrons of the tenant would use such passageways. If the tenant have conclusive control of the passageways and the entrances to the place, then he alone is bound to exercise such care. If both have a right to use it for the prosecution of their respective occupations therein, then both must do so.” The objection made to this instruction is that, if appellant Ehodius used the elevator, she would be liable for the neg
Upon the page of the record referred to in appellants’ brief, in discussing the twenty-seventh reason for a new trial, said reason was stated in the following language: “Because the court erred in giving upon its own motion instruction number sixteen to the jury, to which instruction the defendants at the time excepted.” Upon the page of the record to which we are referred for the instruction we find instruction numbered sixteen. At the conclusion of this instruction is this statement: “Asked by defendants, and given, as modified by the court, and excepted to by each defendant at the time, June 17, 1897. L. M.. Harvey, Judge.” The record, therefore, shows that the instruction was asked by defendants; that it was given as modified. The modification is not shown. Defendants could only except to the modification. No question upon this reason for a new trial is presented for review.
We find no error for which the judgment should be reversed. Judgment affirmed.