Brunker v. Cummins

• Citation: 133 Ind. 443,32 N.E. 732
• Parties: BRUNKER v. CUMMINS.
• Decision Date: 28 November 1892
• Court: Supreme Court of Indiana

133 Ind. 443

32 N.E. 732

BRUNKER

v.CUMMINS.

Supreme Court of Indiana.

Nov. 28, 1892.

Appeal from circuit court, Sullivan county; John C. Briggs, Judge.

Action by William A. Brunker against Robert J. Cummins for injuries sustained by negligent obstruction of a sidewalk. Judgment for defendant. Plaintiff appeals. Reversed, and new trial granted.

John T. Hays and H. J. Hays, for appellant. John E. Lamb, John T. Beasley, and A. B. Williams, for appellee.

Elliott, J.

The undisputed facts are that the appellee was the owner of a building in the town of Farmersburg, the lower part of which was occupied by him as a storeroom and warehouse, and the upper part was leased by him to a lodge of Odd Fellows. A walk ran along the side of the building, and this was usually traversed by the members of the lodge in going to and departing from lodge meetings. The stairway leading up to the lodge room was reached by ascending a platform raised several inches above the walk. A barrel was rolled upon the walk near the platform, and in coming out of the lodge room the appellant struck his foot against the barrel, and was thrown down. The evidence tends to prove that the barrel was placed on the walk by an agent of the appellee, in the discharge of the general duties of his employment, on the afternoon of April 20, 1889, and was left there during the night. There is evidence tending to prove that the barrel projected a considerable distance over the walk, although as to the distance of the barrel from the wall there is some conflict in the testimony of the witnesses. There is also evidence tending to prove that the night was dark. Where an owner leases property to a tenant, and licenses the tenant, or those having rights under the tenant, to use a way of ingress and egress to the demised premises, he has no right, by obstructing the way, to make its use dangerous to the tenant or those having rights under him. A landlord who leases premisesso far invites their use by all persons whose known relations to the tenant are such as entitle them to enter and depart from the demised premises as to impose upon him the duty of refraining from any negligent act that makes the use of the premises unsafe. The members of the lodge were therefore not intruders, but were upon the premises while going to and from the lodge meeting by the implied invitation of the appellee, and, if he made the way of entering and leaving the lodge room unsafe by a negligent or wrongful act, he must answer in damages to a person injured while acting upon this implied invitation. The appellee knew that the incorporeal being called the “lodge” represented the members, and that it required the leased premises as a place where those members might assemble; so that it was his duty to each member to refrain from making the approach to the lodge room unsafe. There is conflict in the authorities as to whether a landlord is responsible to the guests of his tenant, but we need not enter the field of conflict, since the injured person in this instance was upon the demised premises by the owner's invitation. It may, indeed, be correctly held that he was there by right of contract, so that there can be no doubt that the lessor owed him a specific duty; and, if the lessor negligently violated that duty, the person injured has a cause of action.

It is evident from what we have said that a vital question in this case is whether the appellee was guilty of negligence in placing the barrel upon the usually traveled path. Whether a party is guilty of negligence is ordinarily a question in which the elements of law and fact are blended. Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210, and cases cited. The law comes from the court in the form of instruction in most cases, and the questions of fact are determined by the jury from the evidence. In this instance a material and controlling question of fact, which it was the duty of the jury to decide, was whether the distance between the barrel and the wall of the appellee's building was such as to permit the safe use of the walk by one exercising ordinary care. This is as favorable a view of the question for the appellant as can be taken, for, if we should apply the rule which controls in cases where public sidewalks are obstructed by a wrongdoer, we should be compelled to hold that the appellee was guilty of negligence in placing the barrel upon any part of the walk, for the authorities lay down the rule that one who obstructs any part of a public sidewalk is guilty of actionable wrong. City of Indianapolis v. Gaston, 58 Ind. 224. See authorities cited in Elliott, Roads & S. 455. But it is unnecessary to decide whether the rule with reference to public sidewalks applies to this case or not, inasmuch as it is entirely safe to affirm that, if the appellee did, by his negligent act, make a part of the walk unsafe, he is guilty of culpable negligence, unless there was an unobstructed part safe for passage. In other words, if the obstructions placed upon the walk so far encroached upon it as to make its use by the members of the lodge dangerous, he was guilty of such negligence as entitles a member who was himself without fault to a recovery. Adopting the theory most favorable to the appellee, it must be held that whether there was such an encroachment was a question of fact upon which the judgment of the jury must be invoked, and not a question to be determined by the opinions of witnesses. The distance of the barrel from the wall, the width of the walk, the character of the place, and the like, were all proper matters of evidence; and from such evidence it was the duty of the jury to express a judgment, and it was not competent for a witness to assume the functions of the jury, and declare a judgment under the guise of expressing an opinion. Every one knows that opinions are, as a general rule, incompetent. This rule is one of wide sweep, and, although broken by important exceptions, it always prevails where there are no peculiar features of the particular case carrying it from under the general rule, and placing it among the exceptions.

The question we have thus generally discussed arises upon the ruling of the trial court in permitting the appellee's counsel to propound to him while on the witness stand the interrogatory which follows, and in allowing the answer it elicited to go to the jury. The interrogatory reads thus: “You may state, Mr. Cummins, whether there was sufficient room between where that barrel was and the wall for a man to walk with safety.” It elicited this answer: “Yes, I think so; as much room as we commonly have; as much room as between the well house and the brick wall.” The court violated the rule forbidding the expression of opinions by witnesses in allowing this testimony to go to the jury. The question called for an opinion upon two points,-one the negligence of the appellee; the other, the freedom from fault of the appellant. The question could not...