Engel v. Smith

• Decision Date: 02 July 1890
• Citation: 46 N.W. 21,82 Mich. 1
• Court: Michigan Supreme Court
• Parties: ENGEL v. SMITH et al.

46 N.W. 21

82 Mich. 1

ENGEL v. SMITH et al.

Supreme Court of Michigan

July 2, 1890

Appeal from circuit court, Macomb county; ARTHUR L. CANFIELD, Judge.

Eldredge & Spier, for appellants.

John W. McGrath, for appellee.

CAHILL, J.

This suit was commenced by declaration to recover for injuries received by plaintiff by his falling through a trap-door in the store of defendants on the 26th of January, 1888. The building of defendants had, prior to their entry therein been occupied by one Morehouse as a hardware store. Plaintiff had been employed by Morehouse as a tinsmith. The shop in which he worked was on the second floor. Plaintiff's only means of access to the shop in which he worked for Morehouse was by way of the front door of the store, and up inside stairs; at that time there being no stairs to the rear door of the store. The store fronted west on Main street, and along the north side of it ran Lafayette street. Some months before the accident the defendants came into possession of the store, and plaintiff was permitted to continue his business in the shop he had worked in for Morehouse. Some time after the defendants took possession, the post-office was moved into the store. Up to this time the back door of the store was only used to receive goods in, and not as a way to the store. The testimony tends to show that, after the stairs were put up to the back door of the store, leading from the ground to a platform, most of the people coming to the store from the east entered it by the back door. The stairs and platform were narrow, and without rail. The trap-door or hatchway through which plaintiff fell was in front of the back door, and from a foot to a foot and a half distant from it. It had been there from the erection of the building, and was used as a way through which to hoist heavy goods from the cellar to the store floor, and through a trap-door overhead to the second floor. Plaintiff, after the back stairs had been put up, had been accustomed to have his wood taken up the back way, by the load or cord at a time, having it thrown on the platform, and carried up in baskets. It was the custom of those employed in the store in the morning to use the hatchway for throwing up from the cellar the days' supply of wood. This custom was known to the plaintiff. It was also usual to keep the back door locked when the trap-door was open. The door of the hatchway, when opened, rested against a desk, and could be seen by one on the platform, about to enter the door, through the glass which extended from the latch up. The plaintiff testified that some of the panes of glass were gone, and had been replaced by tin. He said: "I did not look through the window. I couldn't." He was not asked, and did not say, why.

On the morning of the accident the store was opened by Wilbur Smith a son of one of the defendants. The plaintiff entered with him, went up to his shop, built his fire, came down, and went to his breakfast. Wilbur Smith testified that he did not see him go out. Soon after the plaintiff and Smith entered Ernest Brabb, a son of the defendant Brabb, came in. He sprinkled the floor, and began sweeping out. He saw the plaintiff go out. Young Smith, as usual, opened the trap-door, and went down cellar to throw up wood. Ernest Brabb was at the other end of the store, sweeping. Both Smith and Brabb testified that they did not remember to have unlocked the back door that morning; but, as there was no evidence that any one else was there who could have done so, the jury must have concluded that they were mistaken. The plaintiff lived north and east from the store, and in returning from breakfast came to the rear of the store from the east, picked up an armful of wood, and, carrying it up the outside stairway, opened the rear door, and stepped in, and in doing so fell through the hatchway, and was injured. On hearing the door open, the young man in the cellar, looking up, saw the plaintiff, and called loudly to him; but the plaintiff says he did not hear him. In the fall the plaintiff's leg was broken just above the ankle, and his arm and shoulder badly bruised. The negligence charged is that the defendants failed to properly guard the hatchway while it was open, or to warn the plaintiff of the danger. The plaintiff recovered a judgment of $1,000, and the defendants bring error. Errors are assigned upon the admission and rejection of evidence, and upon the charge and refusal to charge of the court, but the principal questions in the case are: First. Was the defendant guilty of negligence? Second. Was the plaintiff guilty of contributory negligence?

It is not charged that the maintenance of this hatchway was of itself negligent. Trap-doors, elevator shafts, and similar openings in floors have long been a usual and necessary part of the appliances of business in most warehouses manufactories, and other business buildings. The mere fact of their existence and use is no evidence of negligence. But they are dangerous openings, especially if located in places where they are obscured by darkness, or in such close proximity to doors as that a person entering the door may step into them unawares. The fact of their dangerous character makes it the duty of those maintaining them to properly guard them when they are open. If, as in the case of this hatchway, it is not practical to guard it with a railing, it has been held that the owner is bound to give actual notice...