Dockham v. Marr

Citation130 N.W.2d 924,373 Mich. 680
Decision Date02 November 1964
Docket NumberNo. 33,33
PartiesMilo H. DOCKHAM, Plaintiff and Appellee, v. George C. MARR, Russell E. Marr and Venice Huebner, individually and jointly and d/b/a Marr Theatre, Defendants and Appellants.
CourtSupreme Court of Michigan

Cicinelli, Mossner, Majoros & Harrigan, Saginaw (Peter F. Cicinelli and Eugene D. Mossner, Saginaw, of counsel), for appellee.

Stanton, Taylor, McGraw & Collison, Saginaw, for appellants.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff went to defendants' theatre and asked permission to enter, without paying an admission fee, for the purpose of looking for and getting his young son. He was granted the permission and did enter. It was a brigh afternoon. It was much darker in the theatre. Testimony was adduced of varying estimates as to how long it would take eyes to adjust from the outdoor brightness to the dimness inside. Plaintiff stood in the rear of the theatre and, for about 1 1/2 minutes, looked toward the screen on which a moving picture was being shown. He did not see his son. Against a side wall, at the rear of the theatre and behind the area where the audience was seated, was a sign indicating that a men's room was located in the direction further to the rear from the sign. Plaintiff proceeded toward the sign and turned in the direction indicated by it. There was a dark passageway along the wall on which the sign was located, extending to the rear therefrom. This the plaintiff entered, assuming that it led, as it did, to the men's room. However, the passageway extended but four feet to a stairway leading down to the men's room. There was no sign or indication that the men's room was on a lower floor or that there was a stairway ahead. After plaintiff had walked into the passageway, he came to and fell down the stairs which he testified he did not and could not see because of darkness. He had never been there before. He claimed his fall was due to inadequate lighting of the passageway and stairs and lack of a warning of the presence of the stairs.

Plaintiff sued for resulting damages. A jury found for him. Defendants' motion for judgment non obstante veredicto was denied. They appeal, asking for reversal and entry of a judgment non obstante veredicto in their favor.

Defendants urge as the sole issue on appeal whether plaintiff was contributorily negligent as a matter of law. They contend that he was, for having walked blindly and without due care into a passageway which he testified was so dark that he could not see the stairs. For the proposition that it is contributory negligence as a matter of law for a plaintiff to fail to exercise his natural faculties, such as eyesight, for his own protection in order to avoid injury or to proceed without being able to see, defendants cite Dahlerup v. Grand Trunk Western Railroad Company, 319 Mich. 96, 29 N.W.2d 156, Johnson v. City of Pontiac, 276 Mich. 103, 267 N.W. 795, Evans v. Orttenburger, 242 Mich. 57, 217 N.W. 753, and Selman v. City of Detroit, 283 Mich. 413, 278 N.W. 112. These were cases in which the plaintiff either had known of the hazardous condition which caused him injury or could have known of it and seen it, had he looked or paid attention to what was there plainly to be seen. Viewed in the light most favorable to plaintiff, as must be done (Todd v. Simonis, 370 Mich. 342, 121 N.W.2d 847), the proofs do not show such to be the facts here, where plaintiff testified that he could not see, there was no warning of the stairs, and he had not known of their existence. And so, too, with Blankertz v. Mack & Co., 263 Mich. 527, 248 N.W. 889, relied on by defendant, plaintiff was familiar with the surroundings, knew of the presence of an elevator shaft, opened a door to it and stepped into it without first ascertaining whether the elevator was at that floor level. It was not and so he fell down the shaft. Such heedlessness in the face of a danger known to plaintiff is not involved in the instant case. And then defendants cite Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912, in this same connection. Remarkably enough, in that case this Court held that where plaintiff had stepped out of a lighted room on defendant's premises onto an inadequately lighted platform outside it and fell, the question of her contributory negligence was one of fact for the jury.

Finally, we come to defendants' citations of Steger v. Immen, 157 Mich. 494, 122 N.W. 104, 24 L.R.A.,N.S., 246, Rice v. Goodspeed Real Estate Co., 254 Mich. 49, 235 N.W. 814, and Elliott v. Dahl, 299 Mich. 380, 300 N.W. 132, for the proposition that it is contributory negligence as a matter of law for a plaintiff to step into a dark place where he is unable to see a dangerous condition there existing which then causes him injury. Steger is distinguishable from the instant case in that there the plaintiff, with nothing to indicate that he could safely proceed through a door which was then closed, opened, it, stepped into a darkened shaft and fell to the...

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4 cases
  • Gowdy v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 20, 1969
    ...cases finding jury issues of contributory negligence, e.g., Clark v. Dalman, 379 Mich. 251, 150 N.W. 2d 755 (1967); Dockham v. Marr, 373 Mich. 680, 130 N.W.2d 924 (1964); and Ackerberg v. Muskegon Osteopathic Hospital, supra. However none of these cases involves so obvious a danger with no ......
  • Jaworski v. Great Scott Supermarkets, Inc.
    • United States
    • Supreme Court of Michigan
    • December 22, 1978
    ...negligence is normally a question of fact submitted to the jury for consideration under proper instruction. Dockham v. Marr, 373 Mich. 680, 684, 130 N.W.2d 924 (1964); Cochran v. Pinto, 333 Mich. 91, 99, 52 N.W.2d 611 (1952); White v. Herpolsheimer Co., 327 Mich. 462, 470, 42 N.W.2d 240 (19......
  • Thomas v. Johnson
    • United States
    • U.S. District Court — District of Columbia
    • December 12, 1968
  • Professional Facilities Corp. v. Marks, 19
    • United States
    • Supreme Court of Michigan
    • November 2, 1964

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