Brown v. Nichols

Decision Date27 November 1953
Docket NumberNo. 5,5
Citation337 Mich. 684,60 N.W.2d 907
PartiesBROWN v. NICHOLS et al.
CourtMichigan Supreme Court

Markle, Markle & Eubank, Detroit, for appellant.

Davidson, Kaes, Gotshall & Kelly, by George H. Gotshall, Detroit, Roy P. Nelson, Detroit, of counsel, for appellees.

Before the Entire Bench.

ADAMS, Justice.

Diana Brown, plaintiff and appellant, appeals from a judgment of no cause of action entered in favor of Louis P. Nichols and Stephen Michaels, defendants and appellees, who are the owners of a tavern located on Griswold Street in the city of Detroit known as the Citadel Cocktail Lounge.

On March 21, 1949 the plaintiff and her sister-in-law were shopping in downtown Detroit. In midafternoon while returning to their car, they walked north along Griswold Street. As they passed the entrance to defendants' place of business, a woman, whose identity is unknown, opened the door of the tavern entrance from the inside. The door was hinged in such a manner that it swung entirely out and over the sidewalk and as it opened the outside edge struck the plaintiff in the forehead knocking her to the ground and inflicting injuries which required medical attention.

At the time of the accident plaintiff was talking with her sister-in-law but was looking straight ahead and walking in a normal fashion. Neither the defendants nor their employees knew that an accident had occurred until sometime afterwards.

Suit was commenced to recover damages for plaintiff's pain and suffering. In her declaration she alleged that the door to defendants' place of business 'is so installed and hinged that when opened it swings out, over and across the public sidewalk for a distance of approximately 40 inches, creating thereby an unreasonable risk of harm to passers-by lawfully upon said sidewalk, and constituting a public nuisance * * *.' She further allegd negligence on the part of the defendants in maintaining the door in a dangerous condition. Both allegations were denied in defendants' answer. At the conclusion of the testimony and after both parties had rested, plaintiff, in writing, requested the court to charge the jury in part as follows:

'1. One who occupies or has control over premises abutting upon a busy highway may make use of the highway to the extent that he does not interfere with the paramount right of foot travelers;

'2. An instrumentality which in its normal occupation may inflict sudden and serious injury on a pedestrian lawfully walking on the public sidewalk, is inherently dangerous and constitutes a nuisance each time it is so used as to interfere with such pedestrians * * *.'

In the charge to the jury the court reviewed briefly the facts shown by the testimony and followed with an extended analysis of the law of negligence and contributory negligence. In the charge appears the following statement:

'In order that the plaintiff, Diana Brown, may recover in an action of this character, it is essential under our law that she shall satisfy you jurors by a preponderance of the evidence, of two essentials. These two essentials are first that the accident was caused through the negligence of the defendants; secondly, that there was no contributory negligence on the part of the plaintiff; * * *. In other words, the plaintiff cannot recover unless she satisfies you jurors of the two essentials which I have spoken to you about; * * *'.

No reference was made to plaintiff's claim that defendant was maintaining a nuisance by permitting the door to swing out and over the sidewalk, nor did the court submit rules or principles related to the law of nuisance as a guide for the jury in its deliberations.

A judgment was entered against the plaintiff and in favor of defendants based upon the jury's verdict, and plaintiff then moved for a new trial alleging numerous errors, including the court's failure to give plaintiff's request to charge to the jury. The motion was denied.

It is an accepted rule in this state that the public has the right to the use of the public streets and sidewalks free from encroachments which, because of their location or condition, are a menace to the traveler. When such encroachments endanger those who are rightfully upon the streets, they constitute a nuisance and those who maintain them may be held liable for resulting injuries to the public.

'Every person in traveling upon a public street has a right to absolute safety, while in the exercise of ordinary care, against all accidents arising from obstructions of or imperfections in the street, and this applies as well to what is in the street as to what is over it. * * * It would seem that all signboards, cornices, blinds, awnings, and other things projecting over a walk, or so situated with reference thereto that if they fall they may do...

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14 cases
  • Maki v. City of East Tawas
    • United States
    • Court of Appeal of Michigan — District of US
    • June 25, 1969
    ...the jury must consider. 'The charge as a whole was proper. Denny v. Garavaglia (1952), 333 Mich. 317, 52 N.W.2d 521; Brown v. Nichols (1953), 337 Mich. 684, 60 N.W.2d 907.' Also, in the case Young v. Groenendal (1968), 10 Mich.App. 112, 159 N.W.2d 158, 159--160, the general rule that contri......
  • Ypsilanti Charter Tp. v. Kircher
    • United States
    • Court of Appeal of Michigan — District of US
    • October 9, 2008
    ...se4 is a question of law. Huang v. Wildbrook Apartments, 62 Mich.App. 340, 342-343, 233 N.W.2d 276 (1975); see also Brown v. Nichols, 337 Mich. 684, 689, 60 N.W.2d 907 (1953). However, whether an allegedly injurious condition constitutes a nuisance in fact5 is a question of fact. Brown, 337......
  • Ramik v. Darling Intern., Inc.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • September 10, 2001
    ...a question of law for the court ...," Beard v. Michigan, 106 Mich.App. 121, 124, 308 N.W.2d 185, 186 (1981) (citing Brown v. Nichols, 337 Mich. 684, 689, 60 N.W.2d 907 (1953)), it is well-suited for summary In support of their motion, the Ramik Plaintiffs attached various complaints that De......
  • Gerzeski v. State, s. 58322
    • United States
    • Michigan Supreme Court
    • July 24, 1978
    ...is created as a matter of law or as a matter of fact. This conclusion is buttressed by the Court's language in Brown v. Nichols, 337 Mich. 684, 689, 60 N.W.2d 907, 910 (1953): "The question as to what constitutes a nuisance is one of law for the court; but it is for the jury to decide wheth......
  • Request a trial to view additional results

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