Blankertz v. Mack & Co.

• Citation: 263 Mich. 527,248 N.W. 889
• Decision Date: 05 June 1933
• Docket Number: No. 31.,31.
• Court: Michigan Supreme Court
• Parties: BLANKERTZ v. MACK & CO. et al.

263 Mich. 527

248 N.W. 889

BLANKERTZ

v.MACK & CO. et al.

No. 31.

Supreme Court of Michigan.

June 5, 1933.

Appeal from Circuit Court, Washtenaw County; George W. Sample, Judge.

Action by Edwin R. Blankertz against Mack & Co. and others. From a judgment for plaintiff, defendants appeal.

Case remanded, with directions.

Argued before the Entire Bench.Bishop & Weaver, of Detroit (Stivers & Hooper, of Ann Arbor, of counsel), for appellant Mack & Co.

Burke & Burke, of Ann Arbor (George M. O'Connor, of Detroit, of counsel), for appellee.

NORTH, Justice.

Plaintiff sustained serious personal injuries by falling down an elevator shaft in a commercial building at Ann Arbor, Mich. Defendants Frederick C. Meyer and Flora M. Meyer are the owners of the fee to this property; Mack & Co. are lessees under a ninety-nine year lease; and the K. & M. Cash Hardware, a copartnership composed of Frederick C. Meyer and Oscar F. Knope, are subtenants. Plaintiff had judgment against all the defendants, and they have appealed. In the trial court it was urged, as it is now urged on this appeal, that the plaintiff was guilty of contributory negligence. The circuit judge found ‘* * * that they (defendants) were guilty of negligence which was the sole and approximate cause of the plaintiff's injuries and resulting damages, the court finding as a matter of fact that there was no contributory negligence upon the part of the plaintiff.’

The foregoing finding is assigned as one of the reasons in support of this appeal.

Plaintiff's case is based upon an alleged violation of section 8327, 2 Comp. Laws 1929, which in part reads: ‘ Openings, Duty to Enclose, Manner; Inspection. Sec. 12. * * * It shall be the duty of the owner, agent or lessee to provide or cause to be provided at all elevator openings in any manufacturing establishment, workshop, hotel or store, proper trap or automatic doors or automatic gates so constructed as to open and close by the action of elevators either ascending or descending. * * *’

Plaintiff was an employee of a trucking company, and together with another employee delivered two parcels to defendants' building. In making such delivery, they drove the truck into an alley and near an entrance at the rear of the building. This entrance is through a large metal sliding door of fireproof type located practically at the northeast corner. Immediately inside the building at this point is a hand-operated freight elevator, the shaft of which is approximately six and a half feet square. On the north and east sides the elevator shaft is inclosed by the outside building walls; the other two sides are inclosed by wooden partitions. Practically opposite the entrance from the rear of the elevator shaft is a substantial wooden door about three and a half feet wide which opens into the rear portion of the K. & M. Cash Hardware store. The hinges of the door are on its northerly side, so that, when being opened, the door swings into the interior of the store in a westerly and northerly direction. This door is equipped with an ordinary knob and catch, and, when closed, the southerly edge of the door is almost flush with the southerly wall of the elevator. In delivering their parcels, the two employees passed through the door into the elevator shaft, across the elevator platform and through the wooden door into the store. At the time of their approach, both doors were closed and the elevator platform at the first floor level. Plaintiff's companion placed his parcel on the floor of the store, and immediately returned through the elevator shaft, closing the wooden door as he went out and also closing the outside door. At the time of the delivery, the defendant Frederick C. Meyer was at the rear of the store and somewhat over to the southerly side. Plaintiff approached him for the purpose of securing his signature to a delivery receipt. At the time a traveling salesman was present and some conversation passed between the three men. Mr. Meyer made some inquiry of plaintiff about freight rates for deliveries from Cleveland, and expressed an intention of giving plaintiff's company some business of this character. While this conversation was going on, plaintiff started to leave the building, as he did so turning his head somewhat to the right, and he was still speaking to Mr. Meyer at the time he reached the door to the elevator shaft. There is testimony that plaintiff paused an instant at the door and said to Mr. Meyer, ‘I will bring over an order for you to sign this afternoon.’ Plaintiff thereupon opened the door to the elevator shaft, stepping back slightly as he did so, and then went forward and fell to the bottom of the shaft, a distance of about eight feet. Obviously, while plaintiff was in the store, approximately two minutes, the elevator had been removed to one of the upper floor levels. As to how the accident happened, plaintiff testified:

‘Q. * * * Have you any recollection that as you opened the door you had to step back? A. I think I stepped ahead.

‘Q. How many steps did you take? One or more than one before you went into the opening? A. About one step.

‘Q. That is, you step forward with one foot or the other. Did it strike something solid? A. No, I went into space.

‘Q. So it was the first step you took? A. I didn't know where I was going.

‘Q. Is this a fair statement? You stood on solid ground, opened the door and that was the last solid step you took? A. I think so, yes. * * * As I opened the door I fell into this hole; there was no platform there.

‘Q. You stated it was dark and you could not see the lack of platform there? A. Yes, sir.

‘Q. And when you opened the door that swings into the store you immediately step, either into this shaft, or onto the platform? A. Yes, sir.’

Plaintiff had made deliveries at the store and passed through this elevator shaft on seven or eight previous occasions. He testified that he was in the habit of looking as he opened the door into the elevator shaft to see whether or not the elevator was there, and that, when he entered the building on this occasion through the outside door, he preceded his companion and looked to see whether the elevator was at that floor. The accident happened about 10 o'clock in the forenoon. The elevator shaft was lighted through a window in the north wall approximately two and a half feet square, and located halfway between the first and second floors. There was also a window in the south wall of the shaft which was about five feet by three; the longer dimension being parallel with the store floor and the lower edge approximately five feet above the floor level....