Dockham v. Marr, 33

• Court: Supreme Court of Michigan
• Writing for the Court: DETHMERS; KAVANAGH, KELLY, SOURIS, SMITH, O'HARA and ADAMS, JJ., concurred with DETHMERS; BLACK
• Citation: 130 N.W.2d 924,373 Mich. 680
• Parties: Milo 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.
• Docket Number: No. 33,33
• Decision Date: 02 November 1964

Page 924

130 N.W.2d 924 373 Mich. 680 Milo 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. No. 33. Supreme Court of Michigan. Nov. 2, 1964.

[373 Mich. 681]

Page 925

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. [373 Mich. 682] 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...