180 Ind. 357 | Ind. | 1913
This was an action for damages for personal injuries sustained by appellee by falling down an elevator shaft in an apartment house known as Columbia Plats in the city of Lafayette. The action was originally brought against appellant as agent, George Mohr, day elevator boy at the building, and John W. Barr, Jr., and ITenry W. Barret, owners of the building, as trustees. The action was dismissed as to Mohr, and the court sustained a plea in abatement by Barr and Barret for want of jurisdiction over their persons. The amended complaint upon which the cause went to trial, alleges that Barr and Barret on December 28, 1904, and for two years prior thereto, were and had ever since been the owners of the grounds and building known as
A demurrer for want of facts sufficient to constitute a cause of action was unsuccessfully interposed by appellant to this complaint, md the ruling is challenged here. The objection made to rhe complaint is, (1) that as it appears from the complaint that appellant was an agent only, and that the charge of negligence is one of nonfeasance, and not of misfeasance, that for an act of nonfeasance, an agent is not liable to third persons; (2) that the complaint affirmatively shows contributory negligence on the part of appellee.
It is to be regretted that there is such a divergence of opinion on the first proposition in the American courts. The cases are largely collected on both sides of the question in 2 Am. and Eng. Ency. Law and Pr. 3.160 et seq., and in
Under the first branch of that case as cited in Dean v. Brock, supra, the question would resolve itself into the inquiry as to what is the particular work undertaken. "Was it the general management and control of the building, in which was included the care of the elevator, or was it only the specific matter of the care of the elevator, which was undertaken and neglected? In 1 Shearman & Redfield, Negligence (5th ed.) §243, after stating the general rule as to nonliability of agents as such, for acts of nonfeasance, and citing Dean v. Brock, supra, it is said in the note, “But where premises owned by a nonresident are placed in the hands of a resident real estate agent, with authority to make repairs, lease, etc., and the agent permits such premises to become dangerous for want of repairs, he will be liable to any person who is injured by such dangerous condition of the premises.” Citing Baird v. Shipman (1890), 132 Ill. 16, 23 N. E. 384, 7 L. R. A. 128, 22 Am. St. 504, affirming Baird v. Shipman (1889), 33 Ill. App. 503. In Clark & Skyles, Agency §594, after stating the general rule of nonliability of agents to third persons so far as contractual relations are concerned, it is stated in §595, “But where an agent is guilty of misfeasance, that is, where he has actually entered upon the performance of his duties to his principal, and in doing so, fails to respect the rights of others, by doing some wrong, whether it is a wrong of omission or a wrong of eommis
In the ease at bar, even upon the theory of an agent not being liable for nonfeasance, but for misfeasance or malfeasance only, the nonfeasance was not inspecting or not beeping the elevator apparatus in repair, and the misfeasance in causing it to be operated in that condition. If the distinction above noted is kept clearly in mind by the court, and nonfeasance held to apply only to cases where the agent fails to enter upon the performance of his contractual obligations, and not to eases where he has entered upon such performance, but neglected his duties in some respects, the confusion would not arise. 1 Jaggard, Torts §98 and note.
That is to say, that for failure to perform his eontractual obligations to his principal, a third person can not hold him liable, but for negligence of omission or commission, after Ije has undertaken performance, he is liable under common law rules. The violation of a duty giving rise to injury and a cause of action, arises as much, and as frequently from omission to do a thing which ought to be done in the discharge of his duty to his principal, nonfeasance, as in doing it in the discharge of that duty, in such a manner.as to injure another, misfeasance.
The second reason assigned by appellant why its demurrer to the complaint should have been sustained is, that the facts stated in said paragraph show contributory negligence on the part of appellee. It is contended that appellant was negligent in not ascertaining that the elevator was in place before she stepped through the door. The main case relied upon in support of this view is Cincinnati, etc., R. Co. v. Peters (1881), 80 Ind. 168. In that case the plaintiff was injured ,by stepping from a train. The train had slowed up, the' conductor informed the plaintiff that this was his destination, and told him to get off. It was dark, and he was unacquainted with the place, and could not see where he would alight when he stepped off, but supposed that there was a platform. There was ,no platform and he was thrown under thte ears and injured. ’ The judge who wrote the opinion held that the complaint showed contributory negligence on the part of the plaintiff in stepping. Off the train in the darkness, with no knowledge of whether it was a suitable place to alight. However, there was one dissenting opinion, and two of the other judges concurred in the result, on the ground that the complaint did not aver that there was no fault on the part of plaintiff.
In Cleveland, etc., R. Co. v. Lynn (1909), 171 Ind. 589, 85 N. E. 999, 86 N. E. 1017, it is said, “So long as the facts stated do not force the legal conclusion that there was contributory fault, the averment that there was no such fault entitles the plaintiff to have it submitted to the jury as a
The case of Rhodius v. Johnson (1900.), 24 Ind. App. 401, 56 N. E. 942, establishes the law that a person is not required to exercise the same degree of caution before proceeding into a place where no danger is to be anticipated, that is required upon going into a place of known danger. It is said in that case, ‘ ‘ The open doorway, if not an invitation to enter, was certainly not a warning of danger. What is due care must depend on the circumstances.” Carriers of passengers by elevator being common carriers, must exercise the highest degree of care, both in providing, and in managing them. Ohio Valley Trust Co. v. Wernke (1908), 42 Ind. App. 326, 84 N. E. 999; Ohio Valley Trust Co. v. Wernke (1913), 179 Ind. 49, 99 N. E. 734; Goodsell v. Taylor, supra; Marker v. Mitchell, supra; Treadwell v. Whittier, supra; Orcutt v. Century Bldg. Co., supra; Luckel v. Century Bldg. Co., supra; 1 Thompson, Negligence (2d ed.) §1078; White’s Supp. Thompson, Negligence §1078; Ray, Negligence 308; 1 Thompson, Forms 1001 and note. And it has been held that the public are authorized to enter an open door of an elevator, apparently at rest. Blackwell v. O’Gorman Co. (1901), 22 R. I. 638, 49 Atl. 28; Edwards v. Manufacturers Bldg. Co. (1905), 27 R. I. 248, 61 Atl. 646, 2 L. R. A. (N. S.) 744 and note, 114 Am. St. 37, 8 Ann. Cas. 974. Also that an invitation to enter arises from an attendant open
There are however other interrogatories and answers which disclose the theory upon which the verdict of the jury rests, which while not sufficient to entitle appellant to judgment in its favor, cannot be ignored. One is as follows: “Was the Tippecanoe Loan and Trust Company as agent, in charge and control of said building as an apartment house for the use and benefit of the owners, and was said defendant as such agent, charged with the duty of keeping said building in safe repair and free from danger?” (our italics) and the jury answered, “Yes.” The interrogatory is objectionable because it calls for more than one distinct fact, but assuming that the first fact is found in other interrogatories, the second finding presents a pure finding of law. Neither appellant nor the owners were insurers, and while they as common earriers by the elevator, were required to exercise the highest care consistent with the operation of the elevator, the question and answer travel upon the theory that they are insurers. Another interrogatory and answer finds that it was appellant’s duty to “keep the elevator, the door, and the fixtures thereto in proper repair, in safe condition and free from danger,” here again they are held as insurers, and the law is not so. Louisville, etc., Trac. Co. v. Korbe (1911), 175 Ind. 450, 453, 456, 93 N. E. 5, 94 N. E. 768, and eases there cited.
Another instruction informs the jury that a tenant in an apartment house in going to her room from the street is not required to look at every place she steps. She has a right to rely upon the owners and those in exclusive charge of an apartment house to keep the premises in a reasonably safe condition for those invited upon them, and who have a right to be there. Which instruction was the jury to be guided by? Judging from the interrogatories and answers they were guided by the erroneous ones. Other interrogatories present double, or two or more questions of fact; others present mixed questions of fact and law, as for example, whether defendant knew, or had reason to know of the unsafe condition of the latch or catch. Town of Newcastle v. Grubbs (1908), 171 Ind. 482, 494, 86 N. E. 757. However, taking the interrogatories and answers as a whole, they do not warrant a judgment for appellant as against the general verdict.
The instruction last quoted is attacked as being an invasion of the province of the jury in informing them that “a tenant in going to her room from the street is not required to look at every place where she steps,” on the ground that it was a question for the jury whether she was required to look, and whether she was guilty of contributory negligence. The instruction is too broad even as applied to the facts in the case. The fact that it was somewhat dark in the hallway, and at the elevator door, even though appellee knew the surroundings, and the custom as to the door being open only when the elevator was at the door, and closed when it was not, would not of themselves excuse ordinary care on her part, but these were proper elements in determining whether she did under the circumstances and surroundings, use ordinary care, and whether she did was a question of fact, and whether she should have looked before she stepped, or what degree of care she should have employed under the circumstances was a question for the jury. It cannot be said as a matter of law that a person is not required to look under any circumstances, which is the effect of the instruction. In some places, and under some circumstances, it might be true as a matter of law, that one is not required to look at every place where he steps; in others such care might be required, but what care is required under the particular circumstances and surroundings, is a question for the jury. The rule is well stated in Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 575, 36 Am. Rep. 188, “It is only when the circumstances of a- case are such that the standard of duty is fixed and certain, or when the measure of duty is defined by law and is the same under all circumstances, or when the negligence is so clearly defined and palpable that no verdict could make it otherwise, that the court is authorized to make the question of negligence one of law, and not of fact.” The same thing must necessarily be true, as to the question of contributory negligence. In support of the instruction it is urged that
In another instruction the court instructed that in determining the credibility of witnesses and the weight of their testimony “they must take into consideration the interest, the appearance upon the witness stand, the bias or prejudice of the witness if any be shown.” This instruction is attacked also as invading the province of the jury. Such an instruction is not to be commended for the reason that it is calculated to unduly impress upon the minds of jurors, that the judge has in mind some sus
Other questions are sought to be reviewed as to the admission and rejection of evidence, but the questions are not presented for the reason that appellant expressly states in its brief that it sets out only those urged here, and these questions argued axe not among those set out. Neither were the questions, or objections, or answers, set out. Complaint is made of other instructions given which we need not recur lo, for the reason that they are not likely to be again given. Instructions requested by appellant and refused • proceed upon the theory of appellant as to the insufficiency of the complaint, and were properly refused, for the reasons pointed out as to the sufficiency of the complaint.
For the errors in instructions, the judgment must be re