Silvestro v. Walz
| Decision Date | 08 December 1943 |
| Docket Number | 27915. |
| Citation | 51 N.E.2d 629,222 Ind. 163 |
| Parties | SILVESTRO et al. v. WALZ. |
| Court | Indiana Supreme Court |
Appeal from Newton Circuit Court; R. R. Cummings Judge.
Oscar B. Thiel and Marguerite P. Glaser, both of Gary, for appellant.
Bomberger Peters & Morthland and Alfred H. Highland, all of Hammond, for appellee.
Appellee recovered judgment on a verdict for $1,400 on account of personal injuries sustained by falling down an unguarded stairway in appellant's shop. All the errors relied upon are specified in the motion for new trial. By the verdict the jury determined against appellant the issues that appellee was an invitee, appellant was negligent, and appellee free from negligence proximately contributing to his injury. Ordinarily these are questions of fact for the injury. We are asked to hold as a matter of law that each issue was erroneously determined. To reach such conclusion we must be able to say that no other reasonable inference may be drawn from the facts shown by the evidence. Where there is conflict we consider only such evidence and reasonable inferences therefrom as tend to sustain the verdict.
The building which housed appellant's shop was on the northwest corner of Broadway and 19th Avenue in the city of Gary. He conducted therein the business of repairing springs and aligning automobile wheels. The building extended 50 feet north from the corner on Broadway and 120 feet west from the corner on 19th Avenue. The automobile entrance was on the north side of 19th Avenue some 30 or 40 feet from the corner. East of the entrance and in the southeast corner of the building was a space about 22 by 25 feet where two automobile racks were located. This space was open to the rest of the shop. North of this was an office, 25 by 25 feet enclosed by wood and glass partitions. Between the office and the north wall was the stairway in question, the entrance thereto being 39 inches wide and on a line with the west partition of the office. The landing or top step of the stairs was 29 inches wide. 'There was no light there, no way to make a light.' There were no windows in the north wall. In the office artificial light was always used. Eight windows were in the west wall 95 feet from the stairs. Windows in the south wall were almost 50 feet from the stairs. On the occasion in question there was no door nor gate at the stair entrance and no signs indicating that it was private or dangerous. 'It looked like a passageway.' Immediately south thereof was a door to the office with the word 'Private' thereon. Cars driven into the shop for service proceeded straight north from the door leaving a space of perhaps ten feet between the right side of the car and the west partition of the office. In the middle of the west wall was an enclosed toilet but with no sign thereon to indicate that it was such. The door thereto faced north. No place in the shop was specifically reserved for waiting customers. A sign asked customers not to speak to the workmen. Except as above stated the entire ground floor of the shop was open and there were no signs nor railings indicating that any portion was not to be used by persons waiting while work was performed on their cars.
On the morning of May 16, 1940, appellee drove his Plymouth automobile into the shop for the purpose of realignment of wheels. He stopped the car close to the north wall. The manner in which the injury occurred was described by him alone. Following are excerpts of his testimony on direct examination:
'I got out of the car, and I was looking, there was no one there at the present time, and I was looking for a toilet and I walked around my car and I seen this area-way next to this office door and it looked like a passage-way.'
On cross-examination he testified:
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His sight and hearing were good. He had been in the shop on similar business two or three years before and waited therein while the work was being done.
Appellant's contention that he was not negligent is predicated upon the assumption that appellee was not an invitee at the time and place of his injury. Invitation, whether express or implied, imposes the duty to use ordinary care that the place of invitation be reasonably safe for the invitee. If the duty here existed it can not be doubted that the evidence was sufficient to show its breach by failure to bar, guard, properly light or otherwise warn of the danger of the open stair entrance, which, without such precaution, might become a trap for the unwary. So the controlling question upon the issue of negligence is whether or not appellee was an invitee.
It is insisted by appellant that an implied invitation to a customer extends only to that part of the proprietor's premises necessary for the transaction of their mutual business. He persuaded the trial court to so instruct the jury. The area is not so narrowly circumscribed. A customer is invited to all parts of the premises that may reasonably be expected to be used in the transaction of the mutual business, those incidental as well as those necessary.
Loney v. Laramie Auto Co., 1927, 36 Wyo. 339, 255 P. 350, 353, 53 A.L.R. 73, 79.
The proprietor of any automobile repair shop may reasonably expect that his customers will not sit or stand in one place awaiting completion of the repairs. Usually they are interested in what is being done and move about in the vicinity of the operation. Appellant could not be blind to this common practice. The place in his shop to which appellee unquestionably was invited to drive his car was only a few feet from the stairway. If between the car and the stair entrance there was to be a dividing line beyond which he was a mere licensee, the boundary should have been realistic. Barriers and signs may be seen. This was recognized by appellant for he set apart his office by partition and sign. He could have provided a space behind railings for waiting customers. But in all the shop, and particularly the vicinity of appellee's car, there was no barrier by structure or sign keeping him from any place except the office. From all these circumstances the jury might reasonably have inferred that appellant's invitation covered the space adjacent to the car including the stair entrance. The following cases tend to support this conclusion. Howe et al. v. Ohmart, 1893, 7 Ind.App. 32, 33 N.E. 466; Pauckner v. Wakem, 1907, 231 Ill. 276, 23 N.E. 202, 14 L.R.A.,N.S., 1118; Pope v. Willow Garages, Inc., 1931, 274 Mass. 440, 174 N.E. 727; Franey v. Union Stockyard & Transit Co. of Chicago, 1908, 235 Ill. 522, 85 N.E. 750; Montague v. Hanson, 1909, 38 Mont. 376, 99 P. 1063. See, also, Bartholomew v. Grimes, 1912, 51 Ind.App. 614, 100 N.E. 12.
We regard as irrelevant appellant's arguments that he was under no duty to furnish a toilet for his customers and that one was available in the west end of the building. If there had been one, so labeled, in view of appellant, that fact might have been considered upon the question of contributory negligence. But the negligence of appellant was not in his failure to furnish a toilet but in leaving unguarded an opening which might become a trap in the area to which appellee was invited. He did not step out of the role of invitee when, responding to an urgent physical need, he entered in the belief that the areaway led to the toilet. Pauckner v. Wakem, supra.
Standard Oil Co. v. Henninger, 1935, 100 Ind.App. 674, 196 N.E. 706, is not in point. The court held that appellant had discharged its full duty even to an invitee. The discussion as to invitation is therefore dictum. But it may be noted that the question there was whether any business relationship ever existed. Here the status of invitee was established and the question is as to the extent of the invitation.
Contributory negligence as a matter of law is usually a troublesome question and this case is no exception. An appellate court is loath to substitute its conclusions for that of the trier who saw and heard the witnesses. It is difficult, if not impossible, to present on the printed page the facts as they appeared to the jury. Appellant in his brief says that 'walking into a...
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