Brezee v. Powers

• Decision Date: 11 April 1890
• Citation: 45 N.W. 130,80 Mich. 172
• Court: Michigan Supreme Court
• Parties: BREZEE v. POWERS.

45 N.W. 130

80 Mich. 172

BREZEE v. POWERS.

Supreme Court of Michigan

April 11, 1890

Error to superior court of Grand Rapids; EDWIN A. BURLINGAME Judge.

Birney Hoyt, (John A. Fairfield, of counsel,) for appellant.

Turner & Carroll, for appellee.

LONG J.

The third count of the declaration states the plaintiff's cause of action as follows: "And whereas, also, the said defendant before and on the 19th day of March, A. D. 1888, was the possessor and owner of certain other premises, with the appurtenances, situate in the city of Grand Rapids, in the county aforesaid, upon which said premises the said defendant owned and possessed a building which was occupied and used for various business purposes, a portion of said building being used as a theater; and whereas, there now is, and on the same day and year aforesaid there were, several separate public entrances and exits to said building on the east side thereof, situate upon the premises aforesaid, and there now is, and before and on the same day and year aforesaid there was, a sidewalk built on said premises upon the east side of said building for all persons to pass and repass at their free will and pleasure, from Pearl street to Lyon street, in the city of Grand Rapids, in the county aforesaid, and which had for a long time theretofore been used by the public as aforesaid, and which said user was upon the invitation of said defendant, and with his full knowledge and consent; and the plaintiff further avers that there now is, and before and on the same day and year aforesaid there was, a certain area or hole opening into a certain cellar or vault of, and belonging to, said building and premises of said defendant, which said area or hole opening into said cellar or vault aforesaid was situate upon the east side of said building, and between said building and said sidewalk so built along the east side of said building, as aforesaid, yet the said defendant, well knowing the premises, while he was so the possessor and owner of said building and premises with the appurtenances, and while there was such area or hole aforesaid, to-wit, on the day and year aforesaid, wrongfully and negligently permitted the said area or hole to be and continue, and the same was then and there so negligently, insufficiently, and defectively guarded that by means of the premises, and for want of proper and sufficient guards to the said area or hole, the said plaintiff, who was then and there passing along said sidewalk on said premises, situate along the east side of said building as aforesaid, with reasonable and due care, and without negligence on his part, accidentally and unavoidably fell into such area or hole, by means whereof the said plaintiff then and there became and was greatly hurt, cut, bruised, and wounded," etc. There does not appear to be much contention over the facts in the case as to the situation or surroundings of the premises, and the manner in which the plaintiff was injured.

The evidence shows that the defendant was the owner of the premises which were situate on the north side of and facing Pearl street, upon which, in 1873 and 1874, he constructed a block known as the "Powers Opera-House Block," which contained an opera-house in the upper stories, and stores upon the ground floor. These stores fronted upon Pearl street, and also to the east on this alley. The stores fronting on the alley were fitted up with entrances and store fronts on the alley, and a sidewalk was constructed from Pearl street northward to the north end of the opera-house building, and has since been kept and maintained there. North of defendant's building, and in rear of it, Mr. Idema erected a building used for offices, facing Lyon street, and put a walk along on the east of that, coming within some 19 feet of the defendant's walk; and the public have for many years used this walk in going from Pearl to Lyon streets, and for entering the stores and other places fronting on the alley, and to reach the offices and the opera-house entrance on the east side. In 1883 or 1884 the defendant lowered the opera-house, doing away with the stores fronting this alley, and cut off the back end of the stores facing on Pearl street by constructing a transverse lobby running east and west through the building, to an entrance opening into this alley. The main entrance to the opera-house was, however, from Pearl street. On the west side of the opera-house building is what is called an "arcade," and from which were also doors for ingress and egress to the opera-house. In 1887, it appears, the theater was leased to Mr. Berger, who for a time closed the doors opening from the alley. On the night of the injury the plaintiff was employed as state editor of the Telegram-Herald newspaper, and left his place of business on Pearl street, west of the opera-house, about 8 o'clock, to attend a rehearsal in the opera-house to which he had been invited by his son. The opera-house was not open on that night to the general public. Plaintiff testified that he passed the main entrance on Pearl street, but the doors were not open. He did not try them to see if they were fastened, but went to the alley to go in at the side entrance, through which he has always been accustomed to enter, not knowing that the doors there had been closed; that, after entering the alley, he commenced to unbutton his pants for the purpose of urinating, and walking along at the same time, when his legs struck this railing, and he fell into the area, which was uncovered, and only guarded by this railing some 19 inches in height, and made of gas-pipe. There is no contention in the case about the owner-ship of the premises, and but little, if any, dispute about the situation and surroundings thereon that night.

The plaintiff on the trial in the court below claimed, and that claim is insisted upon here, that when one builds a sidewalk accessible to the public it constitutes an invitation to the public to use it, and it becomes the duty of such parties to guard the public from injury in their use of it, if they exercise ordinary care in going over it. No claim is made by this count in the declaration, and none made by plaintiff in his brief, that the walk in question here was a public way by dedication, use, or prescription, but that the public used it constantly to the knowledge of defendant, and in great numbers passed to and from Pearl street to Lyon street and return, and to pass into the building of defendant and the Idema block. Upon this branch of the case the court instructed the jury, as requested by plaintiff, as follows: "If the jury find from the evidence that the defendant in this case built a sidewalk on the east side of his opera-house, and the same was used by the public whenever they had occasion to visit his premises or to pass the same, and find, further, that the plaintiff in this case intended to visit the opera-house on the night of the accident, and was passing along the sidewalk for that purpose, when he met with the accident, the defendant cannot set up as a defense to this action that the property in question is private property, and that the plaintiff was a trespasser thereon." The court further instructed the jury: "When a landowner, expressly or by implication, invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. Where the owner of land, expressly or by implication, invites others to come upon his land, if he permit anything in the nature of a snare to exist thereon which results in injury to one availing himself of the invitation, and who at the same time is exercising ordinary care, such owner is answerable for the consequence."

The defendant contends that these instructions were erroneous: "(1) Because the railing about the area was reasonably safe, being a heavy iron railing upon iron posts, and sufficiently high to guard the area, as against any person passing that way who exercised ordinary care in walking. (2) Because this open space where the area is situated is not a public way, but the private property of the defendant. (3) That the language of the court in characterizing this place as a snare was unjustifiable, as applied to the facts in the case."

We will dispose of these questions before proceeding to the main point relied upon by defendant's counsel,-that is, that the defendant was guilty of contributory negligence.

Under the undisputed facts appearing upon this record, the public to the knowledge of the defendant, used this as a common way, and the defendant permitted such use. It appears also, without contradiction, that the defendant, in placing the doors entering the opera-house upon the east side, and placing the walk leading from Pearl street to this entrance, by implication invited the public to go over and upon it to that entrance. It was therefore his duty to make it reasonably safe for all persons passing and repassing. The rule laid down in Cooley on Torts, 718, is as follows: "It has been stated on...