Brown v. Nichols
Decision Date | 27 November 1953 |
Docket Number | No. 5,5 |
Citation | 337 Mich. 684,60 N.W.2d 907 |
Parties | BROWN v. NICHOLS et al. |
Court | Michigan 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.
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;
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:
.
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.
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