Thiele v. McManus

• Citation: 28 N.E. 327,3 Ind.App. 132
• Decision Date: 15 September 1891
• Docket Number: 135
• Parties: THIELE ET AL. v. MCMANUS
• Court: Indiana Appellate Court

28 N.E. 327

3 Ind.App. 132

THIELE ET AL. v. MCMANUS

No. 135

Court of Appeals of Indiana

September 15, 1891

Petition for a rehearing overruled Nov. 14, 1891.

From the Warrick Circuit Court.

Judgment reversed.

A. C Tanner and W. W. Ireland, for appellants.

J. S Buchanan and C. Buchanan, for appellee.

BLACK, J. REINHARD, J., did not take part in the decision of this cause.

OPINION

BLACK, J.--

This was an action commenced in the superior court of Vanderburgh county, by the appellee against the appellants.

In that court a demurrer to the complaint having been overruled, and an issue of fact having been formed, the venue was changed to the Warrick Circuit Court, where the cause was tried by jury, and a verdict was returned for the appellee for four hundred dollars.

We are required first to determine whether the complaint was sufficient on demurrer.

It alleged that on, etc., the appellants were the owners and in possession and control of a certain building, the situation of which was described, in Evansville; that they occupied and used it as a business house, in which they sold stoves and tinware; that they invited the public to visit said house for the purpose of trade, and it was a place of public resort for such purpose; that upon said premises, and near the middle of the floor, in the first story, there is an opening, or hatchway, leading into the cellar; that said hatchway, or opening, is located in that part of said store-room used as a walkway, and where the customers of the appellants would and did naturally go in trading and inspecting their goods; that appellants so negligently constructed said opening, or hatchway, that it was unsafe; that "he" negligently and wrongfully failed to place any guards or protection around said opening; that "he" negligently and wrongfully failed to place any signal or warning of such trap, hatchway or opening; that said opening, by reason of the manner in which the stoves were piled in said store-room, was in a dark place; "that by reason of said premises, they were dangerous and unsafe; that in consequence whereof plaintiff, while properly and necessarily in said building, without fault on her part, fell through said hatchway, or opening, by reason whereof she was greatly hurt and injured."

The character of her injuries and the nature of her consequent sufferings were described, the amount of her damages was stated, and judgment therefor was demanded.

A complaint for personal injury through negligence must show a legal duty or obligation of the defendant toward the person injured, existing at the time and place of the injury, which the defendant failed to perform or fulfil, and that the injury was occasioned by such failure. Sweeny v. Railroad Co., 10 Allen 368; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221 (50 Am. R. 783); City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155.

Such a duty arises out of some relation existing at the time between the person injured and the defendant, which the complaint, by the averment of facts should show.

The owner or occupant of premises is not under any legal duty to keep them free or safe from the danger of obstructions pitfalls, excavations, trap-doors or openings in floors for persons who go upon, into or through the premises, not by his invitation, express or implied, but for their own pleasure or convenience, though by his acquiescence...