Hughes v. Coniglio

• Decision Date: 20 December 1946
• Docket Number: 32107.
• Citation: 25 N.W.2d 405,147 Neb. 829
• Parties: HUGHES v. CONIGLIO.
• Court: Nebraska Supreme Court

25 N.W.2d 405

147 Neb. 829

HUGHES v. CONIGLIO.

No. 32107.

Supreme Court of Nebraska

December 20, 1946

Syllabus by the Court

1. The proprietor of a public place of business, such as a restaurant, is not an insurer of a patron against personal injuries inflicted by other persons on the premises who are in no manner connected with the business, but is liable therefor only when he is negligent.

2. While the proprietor of such an establishment is bound to exercise reasonable care to prevent personal injuries to his patrons by such persons, and the standard of care required in such cases is always the conduct of an ordinarily prudent person, nevertheless the degree of care required is graduated according to the danger attendant upon the activities of the business pursued and depends upon the facts and circumstances surrounding each particular case.

3. The proprietor of a place of business who holds it out to the public for entry for his business purposes is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons or by giving a warning adequate to enable them to avoid harm.

4. When the evidence, viewed in the light most favorable to the plaintiff, fails to establish actionable negligence, it is the duty of the trial court to direct a verdict for the defendant.

W B. Bryant, of Omaha, for appellant.

Wear Boland & Nye, of Omaha, for appellee.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER WENKE, and CHAPPELL, JJ., and WILSON, District Judge.

CHAPPELL Justice.

Frank Hughes as father and next friend, brought this action for and on behalf of his minor son, Anthony Hughes, hereinafter called plaintiff, to recover damages for personal injuries received in defendant's restaurant, while two other patrons were engaged in a fight. Upon trial to a jury, the trial court sustained defendant's motion to dismiss, and dismissed the action at the conclusion of plaintiff's evidence, for insufficiency of the evidence to sustain a verdict and judgment. Plaintiff's motion for new trial was overruled and he appealed to this court, assigning as error the action of the trial court. We find that the assignment cannot be sustained.

Plaintiff's petition alleged substantially that on June 17, 1945, he went to defendant's restaurant as an invitee, and, just as he entered, a fight started between two other customers, as a result of which plaintiff was stabbed. He alleged that defendant was negligent because he and his employees failed to protect plaintiff at the time the fight was going on. Defendant's answer denied generally, but admitted that two customers became involved in a sudden altercation in his place of business and that in some manner plaintiff came into close proximity to them and received a cut. Defendant alleged that he was not present at the time, knew nothing of the occurrence, and that the altercation occurred so suddenly and without warning that injury to plaintiff could not be prevented. Plaintiff's reply was in the nature of a general denial, and pleaded certain legal conclusions unimportant here.

In the light of the pleadings, plaintiff argues that defendant's answer admitted facts sufficient to take the case to the jury upon the question of negligence by reason of the rule that 'Where material facts alleged in the petition stand admitted by the answer, the plaintiff has the right to have the jury so instructed, and told that such facts must be taken as true.' Dunbier v. Day, 12 Neb. 596, 12 N.W. 109, 41 Am.Rep. 772.

An examination of defendant's answer discloses that the rule has no application in the manner claimed by plaintiff. The mere admission by defendant that plaintiff was injured in defendant's restaurant does not fix his liability. The mere admission that plaintiff was injured by a sudden and unexpected altercation between two other customers raised no presumption of negligence on the part of the proprietor, since, as hereafter observed, he was not an insurer against such accidents and could be liable for damages resulting therefrom only by reason of negligence on his part. It is apparent at once that defendant did not admit that he was negligent but traversed that issue in his answer.

We turn then to that issue to determine whether plaintiff's evidence failed to establish actionable negligence under applicable rules of law. In so doing, we must observe the rule that 'A motion for a directed verdict must, for the purpose of a decision...