Dahl v. Glover, 62
| Decision Date | 01 March 1956 |
| Docket Number | No. 62,62 |
| Citation | 75 N.W.2d 11,344 Mich. 639 |
| Parties | Agnes DAHL, Plaintiff and Appellee, v. Hugh W. GLOVER and Frances A. Glover, d/b/a Glover's Circle Pharmacy, a copartnership, Defendant, And Cassidy Theatres, Inc., a corporation, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Stanton, MacKenzie, Cartwright & Walker, Saginaw, for defendant-appellant, Cassidy Theatres, Inc.
Smith & Brooker, Bay City, for defendants Glover.
James R. Rood, Floyd E. Wetmore, Midland, for plaintiff-appellee.
Before the Entire Bench.
Plaintiff sued the defendants for damages arising from an injury which occurred when she stepped on a steel cover over a manhole in the sidewalk, in front of the defendant Cassidy Theatres' property and the defendant Glover's Circle Pharmacy's place of business in Midland. The cover tipped up when she stepped on it causing her to fall into the opening. The case was tried by jury, resulting in verdicts of $7,000 against the defendant Cassidy Theatres, Inc., and for no cause for action in favor of Glover's Circle Pharmacy. From the judgment entered against it accordingly the defendant theatre company appeals. The plaintiff has not appealed from the judgment in favor of the defendant pharmacy.
On October 23, 1952, at about 6:30 p.m., plaintiff stepped on the manhole cover while walking on the sidewalk in front of the building owned by said Cassidy Theatres, Inc., occupied by the defendant Glover's Circle Pharmacy. The cover was 22 1/2 inches in diameter, set about 1/4 of an inch into a collar in the sidewalk. Its edges were flush with the sidewalk, with a slight crown in the center, and it weighed 45 1/2 pounds. Plaintiff, who had walked over the cover several times before, was walking at a normal gait, observed the manhole cover but saw nothing unusual, that it was not misplaced, stepped on it with her left toot and as she did so the cover flipped up, hit her leg and rolled away. She fell into the manhole up to her armpits, was helped out, and was severely injured.
Plaintiff's declaration originally was in 2 counts. The first alleged that the defendant was guilty of negligence in creating a nuisance, and that the plaintiff was free from any contributory negligence on her part. However, at the conclusion of all the proofs the plaintiff withdrew count 1 based on negligence and the case was submitted to the jury on the second count. It alleged:
'6. That said opening constituted an encroachment upon and interfered with the use by the public of the city sidewalks, and that because of the nature, location and construction of said opening and because of the nature and construction of the cover thereon, was a public nuisance constructed by Cassidy Theatres and maintained by Hugh and Frances Glover.
Appellant advances 4 grounds for reversal, 2 of whith may be considered together:
'1. Was defendant Cassidy Theatres, Inc. guilty of an unlawful or wrongful act or omission, which created a nuisance whereby the plaintiff was injured?
Obviously the appellant, by said first question, seeks to advert to plaintiff's abandoned claimed under count 1, i. e., that the defendant was guilty of 'an unlawful or wrongful act or omission, which created a nuisance.' Much testimony was received during the trial before plaintiff, at the conclusion of all the proofs, discarded her claim of negligence under her first count. The testimony cannot be definitely segregated and classified as applying to either plaintiff's claim of negligence or to her final claim of nuisance. The briefs of both parties canvass and discuss the testimony at length. There was substantial testimony that the manhole cover was of safe construction and properly placed. There was emphatic testimony to the contrary. It was not locked or fastened shut, although so designed that it could be done. When properly fastened into place, it could not be tipped up or moved. It was not regularly inspected to see that it was kept in place. One Walter Buhler, a registered civil engineer employed by the city, whose testimony qualified him by 29 years' experience in construction work, including designing and constructing manhole covers for streets, sidewalks and highways, testified to different types of manhole covers used in construction work. After examining the manhole cover here in question, he testified that it was different from any that he had ever seen or used, thinner, 1/4 inch thick on the edge instead of 1 1/4 inches, and 45 1/2 pounds in weight instead of 96 to 98 pounds as used by the city of Midland; also that it fitted into the collar 1/4 inch at the edge instead of to a depth of 1 1/4...
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...two further subclasses of nuisance: intentional and negligent. Gerzeski, supra, 403 Mich. p. 158, 268 N.W.2d 230. In Dahl v. Glover, 344 Mich. 639, 644, 75 N.W.2d 11 (1956), the Court approved jury instructions that described nuisance per se as well as the two types of nuisance in fact. See......
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