DeWolfe v. Pierce

<p>Abstract of the Decision.</p> <p>1. Negligence, § 131*—when no variance as to place where injury sustained. In an action to recover for personal injuries where the declaration alleged that plaintiff’s injuries were sustained by falling through a hole in defendants’ “store building,” and the evidence showed that the hole in question was in the floor of a warehouse used in connection with defendants’ store, held no variance, the warehouse under the evidence being properly denominated a store building.</p> <p>2. Negligence, § 24*—when owner not liable for injuries to person entering premises by permission only. One entering premises by permission only, without enticement, allurement or inducement held out by the owner or occupant, cannot recover for injuries caused by obstructions or pitfalls existing in the premises.</p> <p>3. Negligence, § 23*—when person entering premises not mere ' licensee without invitation. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building where defendants conducted a tin and hardware business, it appearing that the entrance in question through which plaintiff sought to enter such store was not the entrance provided for the purpose, held that plaintiff was not a mere licensee without invitation so as to excuse defendants from the duty of exercising care to keep such entrance free from danger where it appeared that the entrance in question was so used by customers entering the store with sufficient frequency to charge defendants with knowledge that it was being so used, in which case an invitation so to use that entrance is to be implied.</p> <p>4. Negligence, § 205*—when instruction ignoring issue not prejudicially erroneous. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, where the defense was that at the time of the injury .plaintiff was a mere licensee without invitation, an instruction ignoring the question whether plaintiff at such time was an invitee of a licensee held not prejudicially erroneous, where a further instruction told the jury that plaintiff could not recover unless the evidence showed that the building in question was a store building into which the public was invited to enter, and where the proof was clear and convincing, and where the instructions, as a whole, were as favorable to defendants as they had a right to ask.</p> <p>5. Negligence, § 198*—when question whether plaintiff exercised due care for jury. In an action to recover for personal injuries alleged to have been sustained by reason of defendants’ negligence, the question whether at the time of the injury plaintiff was in the exercise of due care for his own safety is for the jury.</p> <p>6. Negligence, § 188*—when evidence sufficient to sustain finding as to exercise of due care Toy plaintiff. In an action to recover for personal injuries sustained by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, which defect in such floor was alleged to be due to defendants’ negligence, evidence held to justify the jury in finding that at the time of the injury plaintiff was in the exercise of due care for his own safety.</p> <p>7. Damages, § 115*—when verdict for personal injuries not excessive. In an action to recover for personal injuries sustained as a result of defendants’ alleged negligence by falling through a hole in the floor of an entrance to a building wherein defendants conducted a tin and hardware business, where plaintiff in his testimony sought to magnify the injuries sustained by him as a result of the accident, a verdict of two hundred and fifty dollars for plaintiff held not excessive.</p>