Burk v. Walsh
| Decision Date | 29 October 1902 |
| Parties | JOHN C. BURK v. WALSH & OLTROGGE, Appellants |
| Court | Iowa Supreme Court |
Appeal from Blackhawk District Court.--HON. A. S. BLAIR, Judge.
ACTION to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
Boies & Boies for appellants.
Mullan & Pickett for appellee.
The undisputed facts with reference to the method in which plaintiff suffered the injury for which he seeks to recover damages from defendants are substantially as follows Defendants were conducting a hardware business in a store fronting on a main street in Waterloo, and abutting at the rear on an alley. About midway between the two sides of the store, and 12 feet from a door opening from the alley, was a freight elevator, inclosed on three sides but open on the side fronting toward the rear door, and so constructed that when the elevator was at the main floor the platform thereof constituted a portion of the floor of the room, and when the elevator was taken upward to the second floor or downward into the basement the opening in the main floor was unguarded as against the approach of a person coming from the rear door. Plaintiff entered through the rear door, walked into the elevator shaft on the unprotected side,--the elevator at the time being at the second floor,--and fell into the basement, receiving severe injuries. The jury returned a general verdict in favor of the plaintiff, but gave a negative answer to a special interrogatory propounded at the request of defendants, as follows: "Had defendants, prior to the accident complained of, ever extended to the plaintiff any express or implied invitation to enter their storeroom through the back door thereof?" And it is contended in behalf of appellants that this special finding was inconsistent with the general verdict, and that the latter should have been set aside on their motion; and, further, that in this court judgment should be rendered for the defendants on such special finding. For the appellee, however, it is contended that the interrogatory was improper, first, on the ground that it involves answers to two distinct questions: (1) Whether there was express invitation; (2) whether there was implied invitation; and, further, that it calls for an answer involving a mixed question of law and fact, and that, therefore, the answer to it should not be controlling as against the general verdict.
We might have some difficulty in determining the questions thus raised, but find it unnecessary to discuss them. Even if the answer to the interrogatory above referred to were conclusive that plaintiff entered defendants' store in an improper way, it would not determine the case as against the general verdict, for the plaintiff alleged negligence of defendants in not protecting him as a customer in their store for the purpose of purchasing goods, and it needs no citation of authorities to support the proposition that one who is on the premises of another as such customer, and therefore by implied invitation, is entitled to protection. In this respect it is immaterial how plaintiff came upon the premises, whether in an unauthorized manner or not, if he was there for an authorized purpose. Counsel for appellants insist that this ground of recovery was not relied on, but we find it not only stated in the petition, but urged in one of the instructions asked by the plaintiff; and the instructions given by the court clearly warrant a recovery on that ground, for they apply not only to an entry through the rear door under implied invitation, but in...
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