Barman v. Spencer
Decision Date | 08 January 1898 |
Citation | 49 N.E. 9 |
Parties | BARMAN v. SPENCER. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Grant county; H. Brownlee, Judge.
Action by Rosena M. Barman against Robert J. Spencer. From a judgment in favor of defendant, plaintiff appeals. Reversed.H. J. Paulus and Gordan & Marshall, for appellant. St. John & Charles, for appellee.
The appellant sued the appellee to recover $10,000, damages alleged to have been sustained by plaintiff through the negligence of the defendant. The superior court sustained a demurrer to the complaint for want of sufficient facts to constitute a cause of action. The plaintiff declining to amend her complaint, and electing to stand upon the same, the court rendered judgment that the plaintiff take nothing by her said suit, and that the defendant recover his costs. That ruling is called in question by the assignment of errors, and is the only question presented by this appeal.
The substance of the complaint is as follows: That on the ----- day of September, 1895, the defendant was, and long before said time, and ever since, has been, the owner in fee simple of a certain described lot in the city of Marion, in Grant county; that on said day the defendant entered into a contract with Frank Barman, by the terms of which the defendant rented or leased said real estate, including the buildings thereon, to the said Barman, by the month, for the rental of $15 per month, payable monthly in advance, to be used by the said Barman as a residence for himself and family, the said defendant agreeing in said contract to keep said premises in proper repair and fit for safe use from time to time, and to furnish said Barman free gas, a cistern, and a good well of water, all of which were to be furnished on said real estate, said defendant reserving the right to enter upon said real estate at any time to make said necessary repairs; that in pursuance of said contract, on said day, plaintiff paid said defendant the sum of $15, and at the time of such payment took possession of said real estate, and ever since has had possession thereof, and used, and still uses, the same as a residence for himself and family under said contract; that on the ----- day of September, 1895, the defendant entered upon said real estate above described, for the purpose of repairing said well of water, pursuant to said contract; that, in order to make said improvement by furnishing said good well of water, the defendant took up the platform that covered said well, and at all times thereafter, while said defendant was engaged in repairing said well, to wit, until the 1st day of December, 1895, said defendant at all times carelessly and negligently left said well open and exposed, uninclosed, unguarded, unprotected, and unsafe; that on November 17, 1895, this plaintiff, who was then and now is a sister-in-law of said Frank Barman, was visiting said Frank and family by the express invitation of said Frank, and in going from the dwelling to the privy on said real estate on said day, in the nighttime, said night being dark, and no light near said open well, the same being about three feet from the kitchen door, and located on the path that leads to said privy from said dwelling house, and the plaintiff not knowing the dangerous condition of said well, while properly and necessarily going to said privy, and without any fault or negligence on her part, she accidentally fell into said well; that plaintiff had on two other occasions previous to said November 17, 1895, visited said Frank Barman and family on said real estate, and had gone to said privy on both of said occasions, and was acquainted with the location of said privy and well; that the said well was at both of said times in a safe and proper condition; that plaintiff was greatly injured by said fall; that two of her ribs were broken; that the joint of one of her limbs at the knee became fractured to such an extent as to make it stiff, so she has but little use thereof; that one of her shoulders was bruised and strained, and her spine strained and fractured, to such an extent that it made her almost helpless; that her entire nervous system is now shocked and greatly injured; that, by reason of the foregoing facts, plaintiff was injured in her health and constitution, and suffered great pain of mind and body; that plaintiff has, ever since receiving said injuries and because of the same, been confined to her room, and entirely helpless. Plaintiff further avers that all the injuries, the disability, pain, and suffering aforesaid were caused wholly by the aforesaid carelessness and negligence of the defendant, and without any fault on the part of the plaintiff; that, by reason of the aforesaid injuries, plaintiff has been damaged in the sum of $10,000; wherefore, etc.
The first objection urged against the sufficiency of the complaint by appellee's learned counsel, and in support of the ruling of the trial court, is that it discloses that the plaintiff was guilty of contributory negligence. This negligence, it is claimed, consisted of her failure to make inquiry as to the condition and safety of the well, and ask for a light to enable her to see and avoid the same. But it is alleged that she had no knowledge that the platform had been removed from and left off of the well; that is, she was ignorant of the dangerous condition of the well, and that, when she visited there before, it was in a safe condition. The demurrer admits the truth of these allegations. Thus, it appears that she had no means of knowing anything about the dangerous condition of the well. It would be requiring extraordinary care to require persons to anticipate and guard against dangers of which they are ignorant. Ordinary care is all that the law requires at the hands of any one to exempt him from the imputation of negligence. Railroad Co. v. Clem, 123 Ind. 15-20, 23 N. E. 965. Besides, the complaint broadly alleges that the plaintiff's injuries were caused solely by the negligence of the defendant, and without any fault or negligence of the plaintiff. That is sufficient to admit any and all evidence tending to prove the plaintiff's freedom from contributory negligence. As was said by this court in Railroad Co. v. Wright, 80 Ind. 182: “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 question of fact, whether there was such negligence.” To the same effect are Railway Co. v. Burton, 139 Ind. 357, 362, 37 N. E. 150, and 38 N. E. 594, and cases there cited; Railroad Co. v. Krapf, 143 Ind. 647-651, 36 N. E. 901;Howe v. Ohmart, 7 Ind. App. 32, 33 N. E. 466. In our opinion, the complaint was amply sufficient to show the plaintiff's freedom from contributory negligence.
It is next contended that the facts alleged show that appellant was nothing more than a mere licensee, and that mere licensees and trespassers must take the premises as they find them, and cannot recover for injuries received by them through defects in the premises. Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, is a case where the injured party was a mere licensee, and it was there said: The rule is confessedly different where the person injured goes upon the defective premises on invitation, express or implied, from the owner or occupant, to transact business in which such owner or occupant is interested. But the present case falls within neither of the classes mentioned. It is a case where the complaining party went upon the premises by the express invitation of the occupant, for friendly and social purposes as his guest.
In support of appellee's contention, we are referred to Hart v. Cole, 156 Mass. 477, 31 N. E. 645, where it is said: ...
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