Elliott v. Dahl

• Decision Date: 06 October 1941
• Docket Number: No. 19.,19.
• Citation: 299 Mich. 380,300 N.W. 132
• Parties: ELLIOTT v. DAHL et al.
• Court: Michigan Supreme Court

299 Mich. 380

300 N.W. 132

ELLIOTT

v.DAHL et al.

No. 19.

Supreme Court of Michigan.

Oct. 6, 1941.

Action by Mary M. Elliott against Ray Dahl and others for personal injuries. From a judgment on a directed verdict in favor of defendants Wineman Realty Company and Ray Dahl, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Oakland County; H. Russel Holland, judge.

Argued before the Entire Bench.

Maurice M. Moule, of Pontiac, for plaintiff and appellant.

Leon H. Hubbard, of Pontiac, for defendant and appellee.

SHARPE, Chief Justice.

Plaintiff brought an action against defendants to recover damages for personal injuries alleged to have been sustained by her as the result of the negligence of defendants. The action was dismissed by consent as to defendants Peoples' Outfitting Company and Theodore LaPointe. From a verdict directed by the trial court in favor of defendants Wineman Realty Company and Ray Dahl, plaintiff appeals.

The material facts are not in dispute. On September 26, 1940, at about 8:30 p. m., plaintiff, who previously had been given permission to use an automobile owned by Michael Silver, went to get the car which she understood was located in a parking lot. The parking lot was made up of two adjacent pieces of vacant property. A drain pit had been constructed on one of the pieces of property within about two feet of the other piece of property which was used as a parking lot. Silver's car was not parked near the oil pit, however, plaintiff in attempting to locate the car took the route usually taken to go onto the parking lot and fell into the oil pit. There was enough light on the premises so that plaintiffcould see cars parked, but because of shadows cast by buildings and parked cars, she could not see the pit. As a result of the accident, plaintiff was severely injured and brought suit for damages. At the close of plaintiff's case, trial court, upon motion of defendants, directed a verdict against plaintiff.

The evidence also shows that when plaintiff sought to borrow the car, she was told that it was parked behind the Liberty cafe, a distance of three doors removed from the parking lot where plaintiff's accident occurred.

The principal question in this case may be stated as follows: Was plaintiff in going upon the parking lot in the manner in which she did guilty of contributory negligence?

Defendants rely upon Blankertz v. Mack & Co., 263 Mich. 527, 248 N.W. 889, 891, where we said: ‘This court is definitely committed to the holding that one going about in public places or semipublic places, when possessed of his natural faculties, may not escape being charged with negligence if he is heedless of his own safety. If he fails to use the care that an ordinarily careful person would have used in like surroundings, and in consequence sustains injury, he must bear his own misfortune. Bedell v. Berkey, 76 Mich. 435, 43 N.W. 308,15 Am.St.Rep. 370;Shorkey v. Great A. & P. Tea Co., 259 Mich. 450, 243 N.W. 257;Garrett v. [W. S.] Butterfield Theatres, Inc., 261 Mich. 262, 246 N.W. 57;Boyle v. Preketes, 262 Mich. 629, 247 N.W. 763;Grand Rapids Bedding Co. v. [Grand Rapids] Furniture Temple Co., 218 Mich. 486, 188 N.W. 538;Rice v. Goodspeed Real Estate Co., 254 Mich. 49, 235 N.W. 814. The last-cited case is surely not more conclusive of plaintiff's contributory negligence incident to an elevator accident than the present case, and plaintiff's contributory negligence there barred recovery.’

In determining this issue, we have in mind that while defendants Wineman Realty Company and Ray Dahl conducted a public parking lot at the place where plaintiff was injured, yet it was unnecessary for her to be there in seeking the car that was parked at another place.

In...