Howe v. Ohmart

• Decision Date: 28 February 1893
• Citation: 33 N.E. 466,7 Ind.App. 32
• Parties: HOWE et al. v. OHMART.
• Court: Indiana Appellate Court

7 Ind.App. 32

33 N.E. 466

HOWE et al.

v.OHMART.¹

Appellate Court of Indiana.

Feb. 28, 1893.

Appeal from circuit court, Wabash county; J. C. Conner, Judge.

Action by Charles C. Ohmart against David N. Howe and others for personal injuries received by falling through an open cellar way in one of defendants' college buildings. From a judgment for plaintiff, defendants appeal. Affirmed.

Kidd & Hunter and James W. Arthur, for appellants. Cowgill & Pettit, for appellee.

REINHARD, C. J.

The only available assignment of error is that by which appellants challenge the correctness of the overruling of the motion for a new trial. That motion calls in question the sufficiency of the evidence to sustain the verdict. The action was brought by the appellee against the appellants for damages sustained in a personal injury received by the appellee through the alleged negligence of the appellants. The St. Joseph conference of the United Brethren Church owns the college buildings connected with or under the control of said church at North Manchester. The corporation, as such, the trustees of the college, and the appellant Howe, were made defendants to the action. The college building in which the accident occurred on the 26th day of December, 1889, was not finished, except the basement and one room on the first floor, which was then used for recitations. A hall 10 feet wide extended north and south through the building. The recitation room referred to was at the north end of the hall and on the west side of the building. The entrance door to this room was near the south end of the room. Within 20 inches north of this door, and on the west side of the hall, extending from the west wall out, there was an open space in the floor, left for the purpose of a cellar stairway, which space was 10 feet in length and 4 feet wide, over which a work bench 10 to 12 feet long and about 30 inches wide had been placed diagonally, so that it covered a portion, if not all, of the opening at the south end. At the north end of the opening stood a ladder leading to the basement, the top end projecting some distance above the hall floor. The space at the north end not covered by the ladder was filled by a coal oil barrel standing on the floor north of the opening, and to the west of the ladder. There was connected with the institution a literary society for the benefit, and more immediately under the control, of the students of the college. This society had its regular meeting at 7 o'clock P. M. on the evening of the accident, in the recitation room. The appellee, who was not a student at the institution, came in company with two others, who were members of the society, to attend the meeting. They entered the building at the south end of the hall, which was not lighted, and reached the recitation room, where the meeting was to be held, a little before 7 o'clock. A few minutes after entering, the appellee, having occasion to go out to answer a call of nature, stepped back into the hall from the room, and, turning to the left of the door, to go north, fell into the opening below, and received the injury complained of. The cause was tried by a jury, and the appellee recovered. It is contended that this was wrong, for the reasons-First, that appellee was a trespasser; second, if not a trespasser, that he was at most but a licensee, and appellants owed him no duty; third, that he was guilty of contributory negligence; fourth, that it was not shown that appellants' negligence caused the injury.

If the appellants have succeeded in establishing either of these propositions, of course the recovery cannot be upheld. The appellant Howe was the superintendent and principal of the college, and was also the superintendent of the erection of the building, the work being under his direction. The evidence tends to show that the appellee had visited the school as a student eight weeks during the summer preceding, but not in the same building; that he was at the time of the injury not a student, nor member of the literary society, but was teaching school at another place. There was evidence to the effect that the rules of the society did not admit visitors to the meetings except on “induction nights,” and the meeting in question was not such. The appellee attended the meeting upon the immediate invitation of one of the students and members, who accompanied him. There was nothing to show that appellee had any knowledge of the rule referred to. The evidence further tends to prove that before the accident those in charge of the institution had certain circulars printed, setting forth the advantages of the college, and that Prof. Howe told the students they could send these out if they wanted to do so, and that a good attendance upon the meetings was desired; that the appellee received through the mail a catalogue of the school, setting forth, among other things, its advantages, and advertising the literary society in question as one of the desirable features; that Prof. Howe was in the habit of announcing the meetings of the society at chapel; that Howe furnished the wood for the fuel of the society; that Howe asked the appellee in person to come and visit the school and the building, and to come back as a student. From this evidence we are of the opinion the jury were justified in drawing the inference that the appellee was neither a trespasser nor a mere licensee, but was there upon at least the implied invitation of the college authorities.

It is doubtless the rule that, before there can be any liability on account of negligence in such cases, it must appear that the party complained of was under some legal duty or obligation to the person injured. City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. Rep. 155; Penso v. McCormick, 125 Ind. 116, 25 N. E. Rep. 156; Thiele v. McManus, 3 Ind. App. 132, 28 N. E. Rep. 327; Carskaddon v. Mills, 4 Ind. App. ---, 31 N. E. Rep. 559. In view of the facts that the college authorities had advertised the literary society as a feature of the school, if not in the regular curriculum, at least as an adjunct or branch of the college course, of which every student might avail himself; that before the injury a catalogue announcing this, among other, advantages had been received by the appellee; that Howe, the superintendent, had directed circulars to be sent out containing the announcement of the existence of the society; that the same superintendent had announced the meetings of the society, and urged a good attendance upon the same; that he personally solicited the appellee to come and see the building, and to return to the school as a student,-we think the jury had ample warrant for its inference that the appellee was present at the invitation of the appellants, and was not there merely at their sufferance; much less as a trespasser. As was said by the supreme court in a case involving the right to recover for an injury received by the negligence of another: “If, however, the owner or occupant of lands by any enticement, allurement, or inducement causes others to come upon or over his lands, then he assumes the obligation towards persons so coming to provide a reasonably safe and suitable way for that purpose. An owner may not by invitation, either express or implied, induce another to come upon or pass over his premises without keeping them in such condition of safety as to admit of his passing over by the means designated or prepared without injury, provided he uses due care. To make the owner or occupant liable for an injury received by one passing over his premises, something more than a mere passive acquiescence in the use of his land by others is necessary. So long as his lands are used by others, be it never so frequent, for their own convenience, he is not liable; but if, by some act or designation of his, persons are led to believe that a way or path over premises was intended to be used by travelers or others having lawful occasion to go that way, then as to such persons the...