Goldsmith v. Cody

• Decision Date: 01 June 1957
• Docket Number: No. 147,No. 7,V,147,7
• Citation: 88 N.W.2d 268,351 Mich. 380
• Parties: Norman GOLDSMITH, Plaintiff and Appellant, v. Mary CODY and Collins Posteterans of Foreign Wars, an unincorporated voluntary association, jointly and severally, Defendants and Appellees. ,
• Court: Michigan Supreme Court

Page 268

88 N.W.2d 268

351 Mich. 380

Norman GOLDSMITH, Plaintiff and Appellant, v. Mary CODY and Collins Post No. 147, Veterans of Foreign Wars, an unincorporated voluntary association jointly and severally, Defendants and Appellees.

No. 7, June term, 1957.

Supreme Court of Michigan.

March 5, 1958.

I. Goodman Cohen, Detroit (Irving L. Halpern, Detroit, of counsel), for appellant.

Moll, Desenberg, Purdy & Glover, Detroit, Richard A. Kitch, Detroit, of counsel, for appellee Mary Cody.

Garian & Winkler, Highland Park, for appellee Collins Post No. 147.

Before the Entire Bench.

EDWARDS, Justice.

Norman Goldsmith, plaintiff and appellant herein, was a clerk at the House of Jackets on Woodward avenue in Highland Park. On February 28, 1953, before quitting time he discovered that his car would not start. He got in touch with an acquaintance in the same block, one Ben Browarny and made arrangements to ride home with him. Goldsmith was to meet Browarny at the latter's car which was parked on a parking lot to the rear of the House of Jackets building and immediately adjacent to the west side of a building leased to defendant Collins Post of the V.F.W. and owned by defendant Mary Cody.

Browarny leased a space on this lot for his car from defendant Collins Post for $3.50 per month and his name was painted on the wall of the building to designate his tenancy.

Goldsmith worked until 9:00 p. m. on the date in question and then walked south 2 doors along Woodward to the used car lot and then through said lot to the areaway at the rear of the Collins Post.

As he was proceeding toward the parking lot, in the dark, he fell into a stairway located at the rear of the Collins Post building (as shown on the following sketch) and suffered a broken rib and a broken leg for which injuries damages are sought in this suit.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It appears that the stairway in question had had a wooden barricade built around it and that this barricade had been removed or knocked down prior to the accident, at a time and in a manner not revealed on this record.

Lloyd Weaver, the post commander, called as a witness by plaintiff, testified:

'I know the stairwell was barricaded in January, 1953, by 2 four-by-fours on each corner with 2 one-by-six railings around it, the entire stairwell.

'I have personal knowledge that these barricades were put up or reinstalled after February twice. Once right after the accident and once was just not too recently. The barricade was put up again right after this accident with the same type of wood, the two-by-fours. I don't know how long it lasted but I know there was another one put up just recently.'

There are no essential factual disputes in this record (although several may be found in the pleadings), doubtless because at the close of plaintiff's proofs the trial judge directed a verdict for defendants.

His opinion indicates that the directed verdict was based in part upon his view that plaintiff, on these facts, was a trespasser to whom defendants owed no duty of reasonable care.

We believe the circuit judge was in error on his conclusion that plaintiff was a trespasser as a matter of law. On the facts stated, where defendants directly or by lease operate a parking lot available to the public, the parking lessee is plainly an invitee as to the parking lot and its approaches.

So, too, in our view, are those whom said parking lessee invites to accompany him in his automobile, provided the invitation and the use under it were such as to be within the normal contemplation of the parties.

Under the testimony, we believe that the question of whether Browarny's invitation to plaintiff and plaintiff's use of the rear areaway were within the reasonable contemplation of the parties to the oral lease was for the jury. Schmidt v. Michigan Coal & Mining Co., 159 Mich. 308, 123 N.W. 1122. If the jury's answer was in the affimative, plaintiff was an invitee and the defendant or defendants found to be in control and operation of the premises in question owed him the duty of reasonable care. Blakeley v. White Star Line, 154 Mich. 635, 118 N.W. 482, 19 L.R.A.,N.S., 772; Torma v. Montgomery Ward & Co., 336 Mich. 468, 58 N.W.2d 149; Prosser on Torts (2d Ed.), 452.

We have reviewed Hargreaves v. Deacon, 25 Mich. 1, and the subsequent decisions upon which the trial court relied. In each, the Court founded its ruling upon the proposition that the injured party was a trespasser as a matter of law. In our view of the fact situation here, we have a different question and one not governed by the cases relied upon.

Closer to our present facts are the parking lot cases where the party injured was accompanying the parking lessee, and is generally held to be an invitee. Meyer v. Manzer, 179 Misc. 355, 39 N.Y.S.2d 5; Smigielski v. Nowak, 124 N.J.L. 235, 11 A.2d 251; Gray v. Watson, 54 Ga.App. 885, 189 S.E. 616. See, also, 14 A.L.R.2d 789.

We believe that plaintiff presented ample evidence from which the jury could have concluded that plaintiff at the time and place in question was an invitee, ¹ and hence was owed the duty of reasonable care.

The circuit judge, however, also based his instructed verdict on a finding that plaintiff had not presented facts from which defendants could be found guilty of negligence. On appeal from such a directed verdict, we view the facts from a light most favorable to plaintiff. Pomeroy v. Dykema, 256 Mich. 100, 239 N.W. 342; Gapske v. Hatch, 347 Mich. 648, 81 N.W.2d 337; Daigneau v. Young, 349 Mich. 632, 85 N.W.2d 88.

The key portion of plaintiff's testimony is brief:

'I used to park my car at the rear of the House of Jackets. After I parked my car I would walk through the used car lot. I noticed this stairway and noticed there were some boards around there at certain times.

'As I was walking to Mr. Browarny's car I turned west on the used car lot. I was walking along the building. It was dark. I couldn't see anything, and I was trying to put my arm, with my arm I was trying to find that partition or something or boards that I used to see around that hole. I was intending to walk around it to the back. As I was walking I fell right in there. As I fell I did not knock over or knock down any boards. There were no boards or barricades standing up covering this hole.

'There was no light whatsoever in the empty light socket right above. I did not see ahead of me any distance at all. I could see maybe a foot or two ahead of me.'

The record also contains, as exhibits, photographs of the area in question, identified by plaintiff's witness, Browarny, as representative of the scene in 1953. In them we see 3 substantial posts and 2 one-by-six's forming a guardrail around the stairwell in question. The post commander testified that the same materials were used to reconstruct the guardrail as had been previously employed.

It appears clear that a favorable view of plaintiff's testimony requires us to assume that he had seen these 'boards' or 'partition' at certain times, and that he deemed the railing suitable and safe for the purpose of guilding himself around the stairwell. It is a fair inference, likewise, from plaintiff's testimony that at the time of his injury there were no guardrails in place, but that they had been knocked down or removed in a manner and at a time wholly undisclosed by the record.

Neither pleadings nor proofs offer any contention that the guardrails were negligently installed or maintained, or that any dangerous condition existed prior to their removal or destruction.

The crucial...