Brosnan v. Sweetser

• Decision Date: 27 January 1891
• Citation: 127 Ind. 1,26 N.E. 555
• Parties: Brosnan et al. v. Sweetser.
• Court: Indiana Supreme Court

127 Ind. 1

26 N.E. 555

Brosnan et al.

v.Sweetser.

Supreme Court of Indiana.

Jan. 27, 1891.

Appeal from superior court, Marion county; L. C. Walker, Judge.

H. N. Spaan, for appellants. John Coburn and Ralph Hill, for appellee.

OLDS, C. J.

This is an action by the appellee against the appellants for damages resulting from injuries sustained by the appellee in falling through a trap-door in the store-room of appellants. The questions presented and discussed arise upon the motion for new trial, which was overruled by the judge trying the cause, and exceptions reserved, and the judgment was affirmed at general term. The appellants were engaged at the time of the injury in conducting a retail dry-goods business in a store-room on Illinois street, in the city of Indianapolis. In the store-room, in the passage-way in front of the counter, in that portion of the room used by customers, there was a trap-door, used for entering the cellar, in which appellants had goods stored. It was the custom upon a person entering the cellar through the door to leave the door open until the person came out, and during the time it remained open another employe stood guard at the door to warn persons of the danger. On the occasion of the injury, the appellee, a maiden lady, about 52 years old, a resident of the city, but a stranger at the store, desiring to purchase some calico, entered the store, and was directed towards the rear of the store-room, where the calico was kept. She passed over the trap-door, not noticing it, and looked at the calico, and desiring a different grade from that exhibited to her, she was directed to some other calico at another point in the store towards the front, being in the direction from which she came on entering the store-room. After passing over the trap-door, and while looking at the first calico exhibited to her, a lady clerk in the store directed a cash boy to go into the cellar after some article, and he did so, opening the trap-door, and leaving it open until he returned, and the young lady kept guard at the door. While the trap-door was open, the appellee started to go as directed to look at some other calico, and in doing so, not seeing the trap-door, or having any knowledge of its existence, she fell through it and received serious injuries. It is contended by counsel for the appellants that there is no dispute as to the material facts; that the uncontroverted facts show that the young lady on guard at the trap-door was vigilant, and did all she could to warn and prevent the appellee from falling into the trap; that the lady on guard was of full age, and a competent person to be intrusted with such a duty, and she called to appellee at a time and in sufficiently loud tones to have been heard by a person of ordinary hearing to have heeded her warning and avoided the danger; and that she also motioned to the appellee in such a manner as that her admonitions in that way might have been seen by a person of ordinary eye-sight, and, if heeded, appellee would have avoided danger, and would not have been injured; and it is insisted that the injury occurred through no fault of the appellants or their employes, but by reason of the defective hearing and eye-sight of the appellee, by reason of which she failed to hear or see the warnings given her, and of which defective hearing neither appellants nor their employe who was on guard had any knowledge; and upon this ground it is urged that the verdict is not supported by the evidence, and is contrary to law. It is immaterial to consider at this point whether the conclusion of counsel for appellants is correct, if the facts were as contended by him, for the reason that we cannot agree with counsel that the facts contended for by him are undisputed. The store was a place where all were invited to come, whether old or young, whether possessed of full vigor and perfect faculties, or aged and defective in some of their faculties all alike were welcomed to the store; so that, in caring for the safety of customers, appellants were required to take into account the fact that some were young while others were old, some having good eye-sight, and others not; and it was their duty to guard against injury to those with failing faculties as well as those with ordinary faculties. Indeed, if any difference, they are required to exercise a higher degree of caution to protect those who were not so well able to care for themselves. There was evidence in this case tending to prove, and from which the jury may have found, that the appellee had at least average, if not unusually good, eye-sight for a person of her age, then about 52 years; that she did sewing, examined goods, could tell the figures; that she did such things as people generally do without the aid of spectacles; that she was able to see everything about the store; that she was a little nearsighted, but able to see persons and things across the street. The jury may well have come to the conclusion, from the evidence, that she had fairly good eye-sight, and but little defect in her hearing. There was also evidence tending to prove that the young lady on guard was sitting on a stool some two or three feet on the opposite side of the trap-door, and gave no warning until too late for the appellee to avoid danger, just as she was falling. The appellee had just passed over the door in passing to the...