Thistlewaite v. Heck
| Decision Date | 26 October 1920 |
| Docket Number | 10,346 |
| Citation | 128 N.E. 611,75 Ind.App. 359 |
| Parties | THISTLEWAITE v. HECK |
| Court | Indiana Appellate Court |
Rehearing denied February 2, 1921. Transfer denied April 20 1921.
From Wayne Circuit Court; William A. Bond, Special Judge.
Action by Charles Heck against Clem Thistlewaite. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Gardner Jessup, Hoelscher & White, for appellant.
Robbins, Reller & Robbins, for appellee.
Action by appellee against appellant, who was the owner and proprietor of a drug store, to recover damages for personal injuries sustained by appellee in falling through an open and unguarded trapdoor in the rear room of said drug store.
The undisputed evidence shows that appellee entered the store with several children for the purpose of buying some ice cream. After having entered the store one of the children informed appellee that he wanted to go to the toilet. There was a toilet in a remote corner in the rear room of the store, which could be reached from the main part of the store only by passing behind the counter, around the rear of the prescription case, and through a door leading into the rear room. There was a trapdoor in front of and near the toilet, which opened into the basement and when closed the door formed a part of the floor. On the occasion when appellee was injured, this door was open and resting against the wall of the building. Appellee, when informed that one of the children wanted to go to the toilet, spoke to appellant or one of his clerks. The evidence is conflicting as to the conversation between appellant and his clerk and appellee after the child made his wants known. Appellee testified that after the child had informed him of its desire, he spoke to the appellant saying: "The boy wants to go to the toilet," and that appellant said: "All right go ahead." That he then started through the passageway between the soda fountain and the candy case, and appellant's clerk said, "All right, go ahead, you know the way as well as I do." That he then proceeded through the door back of the prescription case into the back room and across to the toilet. That there were no lights in that room, and while appellee was trying to turn on a light in the toilet, the child fell into the open trapdoor, and in doing so called to the appellee, who in turning around also fell through the opening down into the basement and was injured.
Dr. Bulla was called to appellant's store immediately after appellee was injured and testified as to a conversation which he says he had with the appellant, in which the witness asked how the accident happened. He testified that appellant said appellee came in with four or five children; that one of the children whispered something to appellee; that appellee said to the clerk, "He wants to go to the toilet," and he, (evidently meaning the clerk) said, "All right, come right through this way." That appellant was sitting over by the side, and appellee spoke to appellant saying, "Is that all right Mr. Thistlewaite?" and that appellant in reply to appellee said, "Go ahead Charley, you know as much about that place as I do." There was also some evidence to the effect that men working in and around the store, such as draymen, expressmen, and some of appellant's customers at the store would occasionally use that toilet. Sometimes they would ask permission to use it, other times they would not. That appellee had worked in the rear room for appellant several days building shelving and had seen people other than employees of appellant use the toilet. Appellant denied having had any such conversation with appellee or with Dr. Bulla, and says that whatever conversation appellee had was with the clerk, Emmet Harris, who testified that appellee after he came into the store said, "The boy wants to use the toilet," and that he, Harris, said, "You know where it is, don't you?"
Appellant contends that the verdict is not sustained by sufficient evidence and is contrary to law, and that the court erred in not instructing the jury to return a verdict for appellant. There is, in fact, no controversy between appellant and appellee as to the law. The contention of appellant is that under the facts appellee was a licensee at the time of his injury, while ap...
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