Evans v. Orttenburger

Decision Date14 February 1928
Docket NumberNo. 24.,24.
Citation217 N.W. 753,242 Mich. 57
PartiesEVANS v. ORTTENBURGER.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, St. Clair County; Harvey Tappan, Judge.

Action by Josephine A. Evans against Ernest Orttenburger. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before the Entire Bench except FLANNIGAN, C. J.John B. McIlwain, of Port Huron (Henry Baird, or Port Huron, of counsel), for appellant.

Walsh, Walsh & O'Sullivan, of Port Huron, for appellee.

McDONALD, J.

This action was brought to recover damages for personal injuries which the plaintiff received by falling into an unguarded stairway in the defendant's store.

The defendant owns and operates a leather goods store in the city of Port Huron, Mich. The first floor is connected with the basement by means of a stairway which runs lengthwise with the store and is 25 or 30 feet from the entrance. The stairway opens toward the rear of the store and is about 5 feet in width. At the time of the accident, the front and sides of the stair railing were hidden from the view of one approaching from the front of the store. On the 23d of December, 1924, at about 11:30 a. m. the plaintiff entered the store for the purpose of purchasing a sewing basket. She passed toward the rear and discovered the article she wanted on an upper shelf. In stepping backwards to get a better view of it, she fell into the open stairway and was seriously injured. She bases her action on the negligence of the defendant, which she says consisted in maintaining an unguarded stairway obscured from the view of customers by merchandise piled about it for the purpose of display.

In defense to the action, the defendant contends that the sole cause of the accident was the plaintiff's negligence in failing to give attention to her surroundings. On these grounds at the close of the proof, the defendant moved for a directed verdict. The motion was denied and both questions were submitted to the jury. The verdict was no cause of action. The plaintiff has brought error.

The errors assigned relate to the admission and exclusion of evidence, to the court's refusal to submit certain of the plaintiff's requests to charge, and to the charge as given. As we are convinced from our examination of the evidence that the plaintiff was guilty of contributory negligence as a matter of law, and therefore cannot recover, it will not be necessary to discuss the errors assigned.

The maintenance of this stairway was not in itself negligence. If there was any negligence on the part of the defendant, it was in obscuring the view of the stairway from his customers by piling merchandise about it. If there was any negligence on the part of the plaintiff, it was in failing to see the stairway, and she would not be guilty of negligence on that account if her view was obscured by the merchandise piled about the railing. It goes without saying that the dangerous part of the stairway is the opening or entrance. That was plainly visible. The testimony seems to be undisputed that at the point where the plaintiff stood when she began to move backwards there was nothing to obstruct her view of the opening. She could have seen it if she had looked. So, unless there was something sufficient to excuse her inattention, she must be held to have been guilty of negligence. She was not being waited on at the time of the accident. She had not been directed by any one to go to that part of the store though impliedly she was invited to be there. She had gone in at a time when there were only two other patrons there. She could not be immediately waited on. She moved to the rear of the store looking all the time at the shelves to discover the article which she wanted. She passed along close to the railing of the stairway without observing it, though she could have done so, notwithstanding the fact that merchandise was piled about it. And while we are not holding that she was negligent in failing to see the stairway at that time, it is an important fact that neither then nor subsequently did she give any attention to her surroundings. She passed the stairway safely and stopped in front of the baskets which were on a high shelf. About at that point the accident occurred. She testified:

‘If there were baskets displayed on the left-hand side of store as large as the one I was looking for, I could have seen it if it had been as far away as that picture behind you, about 50 feet. I do not have any trouble with my eyes, even if I do wear glasses. They were in good shape. I wore glasses, but they were not steamed. I could see very well.

Q. You never looked away from the north wall of the store and to the left of you from the time that you first saw that basket until you fell into the staircase? A. No, sir;...

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  • Keeter v. Devoe & Raynolds, Inc., 33629.
    • United States
    • Missouri Supreme Court
    • April 23, 1936
    ...Mass. 246, 35 N.E. 463; Globe Indemnity Co. v. Hook, 189 Pac. 797; Taylor v. Du Pont Building Corp., 99 Atl. 284; Evans v. Orttenburger, 217 N.W. 753, 242 Mich. 57; Silver v. Hause, 131 Atl. 668, 285 Pa. 166; Pentz v. Wetsman, 257 N.W. 735, 269 Mich. 496; Curtis v. Capitol Stage Lines Co., ......
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    ...Johnson et al. v. Washington Route, Inc., 121 Wash. 608, 209 P. 1100;DeHoney v. Harding, 8 Cir., 300 F. 696, 699;Evans v. Orttenberger, 242 Mich. 57, 217 N.W. 753; Central Pub. House of Reformed Church in United States v. Flury, 25 Ohio App. 214, 157 N.E. 794;Massey v. Seller, 45 Or. 267, 7......
  • Ditsch v. Kansas City Power & Light Co.
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    • May 8, 1939
    ... ... 20; Ballou v. Collamore, 160 Mass. 246, 35 N.E. 463; ... Taylor v. DuPont Bldg. Corp., 6 Boyce (29 Del.) 277, ... 99 A. 284; Evans v. Orttenburger, 242 Mich. 57, 217 ... N.W. 753; Silver v. Hause, 285 Pa. 166, 131 A. 668; ... Pentz v. Wetsman, 269 Mich. 496, 257 N.W. 735; ... ...
  • Gugel v. Sears, Roebuck & Company
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 31, 1962
    ...Elliott v. Dahl, 299 Mich. 380, 300 N.W. 132 (1941); Blankertz v. Mack & Co., 263 Mich. 527, 248 N.W. 889 (1933); Evans v. Orttenburger, 242 Mich. 57, 217 N.W. 753 (1928); Larned v. Vanderlinde, 165 Mich. 464, 131 N.W. 165 (1911). It can be argued that under these earlier decisions of the S......
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