Burns v. Union Carbide Co., 42.

• Decision Date: 29 December 1933
• Docket Number: No. 42.,42.
• Parties: BURNS v. UNION CARBIDE CO.
• Court: Michigan Supreme Court

265 Mich. 584

251 N.W. 925

BURNS

v.UNION CARBIDE CO.

No. 42.

Supreme Court of Michigan.

Dec. 29, 1933.

Appeal from Circuit Court, Chippewa County; Herbert W. Runnels, Judge.

Suit by J. A. Burns, administrator of the estate of Catherine Burns, deceased, against the Union Carbide Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Argued before the Entire Bench.

WEADOCK, J., dissenting.

Warner & Sullivan, of Sault Ste. Marie (Walter S. Foster, of Lansing, of counsel), for appellant.

John W. Shine, of Sault Ste. Marie (Prentiss M. Brown, of St. Ignace, of counsel), for appellee.

McDONALD, Justice.

This suit was brought to recover damages growing out of injuries resulting in the death of Catherine Burns, caused, it is alleged, by the negligence of the defendant.

The defendant owns and operates a plant is Sault Ste. Marie, Mich., where it manufactures calcium carbide. In the process of manufacturing there remains a large amount of refuse matter, which is hauled in cars away from the plant and dumped in excavations on land owned and maintained by defendant for that purpose. This refuse is waste material from the use of coal, coke, and limestone in the defendant's furnace. It is a mass of matter which when fresh from the plant is full of hidden fire and remains in that condition for several days after it is dumped.

A large quantity of the refuse is produced daily, and, for the purpose of hauling it to the place where it is to be deposited, the defendant has built and maintains a railway track extending east and west across the dumping grounds. It is claimed by the plaintiff that for many years prior to the accident the public had continuously used the railroad bed as a permissive way for pedestrian travel; that there was a well-defined path over which the people were accustomed to walk; that its use for such purpose was known to the defendant and acquiesced in by it.

Catherine Burns, the decedent, was a girl 12 years of age at the time of the accident. In company with other children of about the same age she left her home in the afternoon of May 30, 1931, on a hike to Mission Creek about two miles away. In going and coming they used the path along the railroad bed. It is the claim of the plaintiff that shortly prior to that time the defendant had excavated a large pit very close to the rails of the track and the path which the public was accustomed to use; that into this pit it had dumped carloads of hot refuse; that as the plaintiff's decedent was walking on the path along this excavation the ground gave way and she fell into the refuse and was so severely burned that she died in a few days. It is the plaintiff's theory that at the time of the accident Catherine Burns was a licensee upon the defendant's property and was rightfully there, subject, however, to the attendant risks; but that, by digging the excavation so close to the pathway which the public customarily traveled and filling it with a dangerous substance, the defendant had created a new peril, and by not guarding the dangerous place so created, or giving warning of its danger which was not obvious, it was guilty of negligence, which was the proximate cause of the injury.

The defendant denied that the path had become a permissive way and contended that the plaintiff decedent was a mere trespasser on its premises to whom it owed no duty, except to refrain from wanton and willful acts that might cause her injury; that it made no changes in the condition of the premises by which dangers in the use of the pathway were increased; that it was under no duty to guard the path or to warn the people who used it; that it was not negligent; that decedent used the path at her own risk, and that her injury was caused by negligently failing to observe the danger that was plainly obvious.

At the close of the proofs the defendant moved for a directed verdict. Decision was held until after verdict when it was renewed in a motion to enter a judgment for defendant notwithstanding the verdict. This motion was denied and a judgment for $15,000 was entered for the plaintiff. The defendant has appealed and seeks reversal because of alleged errors in the admission of evidence, in the charge of the court, in the refusal to direct a verdict and denial of a motion for a new trial.

It is first contended that no...