Betts v. Carpenter

• Decision Date: 06 June 1927
• Docket Number: No. 73.,73.
• Citation: 214 N.W. 96,239 Mich. 260
• Parties: BETTS v. CARPENTER.
• Court: Michigan Supreme Court

239 Mich. 260

214 N.W. 96

BETTS

v.CARPENTER.

No. 73.

Supreme Court of Michigan.

June 6, 1927.

Error to Circuit Court, Menominee County; Richard C. Flannigan, Judge.

Action by Ernest A. Betts against W. S. Carpenter. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.John J. O'Hara, of Menominee (Matt F. Bilek, of Menominee, of counsel), for appellant.

H. J. Rushton, of Escanaba, for appellee.

McDONALD, J.

This action was brought to recover damages for injuries sustained by falling on an icy sidewalk in the city of Menominee, Mich.

At the time of the accident the defendant was the owner of a frame garage building erected so close to the street that the eaves projected 18 or 20 inches over the sidewalk. There were no eave troughs on the building, and during thawing weather water dripped from the roof onto the sidewalk, where it froze and formed a ridge of ice and rendered the walk dangerous for pedestrians. It is the plaintiff's claim that about 6 o'clock in the morning of January 20, 1925, while on his way to work, he slipped on this ice, fell, and sustained serious injuries. The negligence charged to the defendant is that he maintained his building in such a way that water dripped from the roof upon the sidewalk where it became frozen and was allowed to accumulate and remain a menace to public travel. The defendant denies that he was negligent in the manner charged. He says that he employed a servant to keep the sidewalk free from ice, that it was kept in a safe condition for public travel, but that in any event he is not liable in this action because the plaintiff was guilty of contributory negligence, in not watching where he was walking, and in failing to observe the condition of the walk, which was apparent to any pedestrian using ordinary watchfulness. Urging the claim that as a matter of law the plaintiff was guilty of contributory negligence, counsel for the defendant requested the court to direct a verdict for the defendant. The court declined to do so and submitted the issue to the jury. The plaintiff received a verdict and judgment for $3,473. The defendant moved for a new trial and assigned as reasons therefor that the verdict was contrary to law and against the great weight of the evidence, that it was excessive, and that the defendant's theory of the plaintiff's contributory negligence was not presented to the jury in the court's charge.

The first assignment of error presents the question of contributory negligence. It is urged by counsel for the defendant that there was a safe place to walk on either side of the ridge of ice in the center of the sidewalk, which the plaintiff would have observed if he had been using ordinary care for his own safety, and that in failing to use such care, he walked in a dangerous place instead of in a safe place, and therefore was guilty of negligence which contributed to his injury and which bars his right to recover in this action.

Counsel for the defendant unsuccessfully undertook to establish this theory in his cross-examination of the plaintiff as the following quotation from the testimony will show:

‘Q. And this ridge of ice you speak of was, so far as the center of the concrete was concerned, in the center? A. It was about two feet and a half from the building and about the center of the sidewalk.

‘Q. You had three feet of the south side of the sidewalk to walk on without striking the ridge? A. No; you couldn't walk there if you wanted to.

‘Q. Why? A. Because it sloped off from that ridge down.

‘Q. How about the three feet on the north side of the walk, up closer to the building? Was there room there to walk? A. It sloped from that ridge both ways.

‘Q. So the only place in the sidewalk, according to your testimony, was the center of the sidewalk where the ridge was? A. You could walk it providing you were very careful and knew that the ice was there.

‘Q. Was there ice all over the sidewalk, or just at this point in the center? A. The length of the building.

‘Q. The length of the building it was all ice? A. Pretty nearly all ice.’

Mrs. Beland, a witness for the plaintiff, testified to the condition of the sidewalk at the time of the accident.

‘Q. What was the condition of the walk alongside of the Carpenter building? A. In the winter it was in bad condition, as bad as I ever seen it; I wouldn't know what side to go; I didn't know where to go.

‘Q. Just tell the jury how it was. A. Well; all I can say, it was up this way, and you didn't know what...