Faris v. Hoberg

• Decision Date: 20 April 1893
• Citation: 33 N.E. 1028,134 Ind. 269
• Parties: FARIS v. HOBERG et al.
• Court: Indiana Supreme Court

134 Ind. 269

33 N.E. 1028

FARIS

v.HOBERG et al.

Supreme Court of Indiana.

April 20, 1893.

Appeal from superior court, Vigo county; J. M. Allen, Judge.

Action by James C. Faris against Max F. Hoberg and others for damages sustained by falling into an elevator shaft in defendants' store. From an instruction of the court to the jury to return a verdict in favor of defendants, plaintiff appeals. Affirmed.

I. N. Pierce, J. G. McNutt, and S. R. Hamill, for appellant. Davis, Robinson & Davis, for appellees.

HACKNEY, J.

The appellant prosecuted this action in the court below for the recovery of damages in the sum of $20,000, alleged to have been sustained in falling into an open elevator shaft upon the premises of the appellees. The issue was joined by a general denial, and in the submission of the cause the court instructed the jury to return a verdict in favor of the appellees. This action of the court is here submitted for review.

The appellees were retail merchants in the city of Terre Haute, their storehouse fronting on Wabash avenue, and extending north 141 feet and 10 inches, with an alley on the west 16 feet in width. In the northwest corner of the building, on the first floor, was a freight room extending north and south 18 feet and 11 inches, and being 7 feet and 11 inches in width. To this room double doors opened from said alley, and immediately south of this room was the shaft of the freight elevator, (where the injury was sustained,) occupying the full width of said freight room. Immediately south of the elevator is a vestibule entrance to the storeroom. To the elevator shaft was an entrance on the south of 4 feet in width by 7 feet in height, and a like entrance from the freight room 4 feet and 9 inches wide, and directly opposite the entrance from the salesroom. The vestibule entrance to the salesroom opened immediately south of the west side of the salesroom entrance to the freight elevator, and from this entrance one could pass behind a dry-goods counter on the right into the elevator shaft at the left, or around a large table laden with goods, and through a narrow opening between said table and said counter, to that part of the salesroom devoted to the walks for customers between the counters. On the alley, and next to the storehouse, is a walk of stone flagging 30 inches wide, 68 feet and 10 inches long, and extending north from Wabash avenue. From the north end of this walk to the vestibule entrance it was 40 feet and two inches, without paving. On the occasion of appellant's visit to appellees' storeroom he was seeking a drayman to haul some of his goods, not connected with appellees' business, and learning that John Burns, the owner of a transfer wagon, was in the rear of appellees' store, went to the alley, and saw the wagon at the entrance to the freight room. Going up the alley he could not see Burns, and, presuming that he was in the building, he stepped in at the vestibule entrance. He immediately turned, facing the two openings to the elevator shaft, and, seeing some person in the freight room, asked for the drayman, and received an answer from the freight room that he was in there. At once appellant started into the freight room through said openings, and fell through the shaft, neither of the openings to which was guarded or protected by barriers. All of the foregoing facts are undisputed. There are some controverted facts as to the character of lights near the shaft, and as to the extent of the darkness within the shaft; facts, from the appellant's theory of the case, essential to the charge of negligence against the appellees. There were also controverted facts as to appellant's vision having been so obscured by the sudden change from the bright sunlight without, and the softer lights and the shadows within, the building, and probably as to other matters, but all having reference to the question of contributory negligence on the part of the appellant.

Numerous authorities are cited by the appellant to the proposition that, in a case involving questions of negligence, the court is not at liberty to take such questions from the jury, but must leave then, to the jury for decision. Of the cases so cited was Car Co. v. Parker, 100 Ind. 181;Koerner v. State, 98 Ind. 7;Weis v. City of Madison, 75 Ind. 241;Crookshank v. Kellogg, 8 Blackf. 256; and Elliott, Works of Advocate, 686. These cases all belong to that class where a question of fact is controverted, and that question is one necessary to plaintiff's recovery, or essential to the defendants' proper defense. None of them hold that the jury is the exclusive judge of the existence or nonexistence of negligence as an ultimate fact. A moment's reflection will show the error of a rule which would deprive the court of the right to determine whether a given state of facts, uncontroverted, does or does not constitute actionable negligence. When the facts are submitted to the court upon demurrer to a complaint, the court exercises the power of determining whether such facts, if proven, will constitute actionable negligence. When, under the practice prevailing, the jury does not return a general verdict, but returns findings of fact by special verdict, the court must determine whether the facts so found are sufficient to warrant the conclusion of the existence of negligence. When, during the trial, the court is called upon to instruct the jury, there is, that we now recall, but one limitation upon the duty to charge that a given state of facts, if found by the jury to exist, does or does not authorize the finding of negligence, and that exception is where the facts clearly established are such that one man, impartial and of good judgment, would infer that negligence existed, while another man, equally sensible and impartial, would infer that proper care had been used. Upon such facts it is the province of the jury to adjudge the existence or nonexistence of negligence. Railway Co. v. Collarn, 73 Ind. 261. The case in hand is not of that class. If it were otherwise, the purpose of the charge to the jury would be thwarted, and that which is designed for the instruction of the jury upon matters of law, where it is supposed its members have not the special knowledge possessed by the judge, would be but a useless ceremony, and the jury would be given the arbitrary and uncontrolled power to determine what facts, however important or however trivial, should constitute actionable negligence. In the progress of the trial the court determines the admissibility of evidence as having, or as not having, a tendency to prove negligence, and it may not be said that in so doing the functions of the jury are usurped by the court. Some of the authorities cited expressly recognize the existence of cases where the court may take the question from the jury. In Weis v. City of Madison, supra, p. 254, it is said: “There are cases where the court may rightfully direct a verdict. A judge is not bound to submit a question to a jury where their verdict, if contrary to his views of the testimony and its legal effect, would be certainly set aside as clearly against the law and the evidence. Dryden v. Britton, 19 Wis. 31; Godin v. Bank, 6 Duer, 76; Lone v. Railroad Co., 14 Gray, 143;Improvement Co. v. Munson, 14 Wall. 442; Jewell v. Parr, 13 C. B. 909; Parks v. Ross, 11 How. 362;Pleasants v. Fant, 22 Wall. 116;Dodge v. Gaylord, 53 Ind. 365-377.” In Car Co. v. Parker, supra, it is said: “There are, no doubt, cases where the court will determine the question of contributory negligence, but this is not one of them.” The opinion then proceeds by setting forth the facts in dispute, which facts were there held to be essential to a conclusion of negligence. The case of Koerner v. State, supra, holds that the court has not the right, in charging the jury, to assume the existence of some essential fact; but it is said: “Where the existence of a fact is established without any conflict, contradiction, or dispute,” it is not error to assume the existence of such fact. In Works of Advocate, supra, Judge Elliott says: “Where the plaintiff wholly fails to make out a case, the defendant is entitled to an instruction directing the jury to return a verdict in his favor. If the evidence of the defense entirely answers and overthrows that of the plaintiff, not leaving him a prima facie case, the former is entitled to an instruction requiring the jury to give him the verdict. On the other hand, if the defendant's evidence wholly fails to meet that of the plaintiff, or to establish any affirmative defense, it is the plaintiff's right to have the jury so instructed. Neither party is, however, entitled to such an instruction where there is a conflict of evidence upon a material point.”

Is this a case where, under the rules quoted from the authorities cited by the appellees, the court had the right to direct a verdict for the defendant? In every case involving actionable negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad, or...