Weinhold v. Acker

<p> Negligence—use of door under hatchway in store Try customer. </p> <p>Where it appeared that plaintiff and other customers of defendants had been in the habit, with defendants’ permission, of using a certain door in their place of business for exit and . entrance, which door was obviously intended for the transfer of freight, etc., and not for the use of customers, —in an action by plaintiff to recover damages for injuries caused by the falling of a hogshead through a hatchway above said door while plaintiff was entering the store, defendants are not entitled to have the jury charged that plaintiff, in entering by said door, took all risk of so doing. By giving such permission, defendants assumed a duty to plaintiff of protecting her from negligence.</p> <p>The question whether permission was given by defendants'so to use said door, is presented to the jury by evidence that prior to the happening of the accident, it had been used by plaintiff and others for exit and entrance.</p> <p>Where, in such case, the evidence shows that immediately before entering said door, plaintiff was met by one of defendants’ employees, who told her in a loud voice and with an excited manner and pushing her slightly, not to enter, defendants are not entitled to a charge that, “if the jury believe that plaintiff was directed by an- employee of defendants not to enter said door, and through heedlessness or inattention she did not hear what was said to her, or hearing it disregarded the warning, the defendants are not liable.” First, because the request implies that it was enough if said person were an employee, though plaintiff were ignorant of the fact; and second, because plaintiff, in either event, is not, under the circumstances, chargeable as matter of law with want of due care.</p>