Graves v. Dachille, 28

• Decision Date: 05 June 1950
• Docket Number: No. 28,28
• Citation: 43 N.W.2d 64,328 Mich. 69
• Parties: GRAVES et al. v. DACHILLE et al.
• Court: Michigan Supreme Court

Page 64

43 N.W.2d 64

328 Mich. 69

GRAVES et al. v. DACHILLE et al.

No. 28.

Supreme Court of Michigan.

June 5, 1950.

Maiullo & Maiullo, Detroit, for defendants-appellants.

Ramon A. Martinez, Detroit, for plaintiffs-appellees.

Before the Entire Bench.

NORTH, Justice.

Alleging that the death of their minor son was caused by defendants' negligence in failing to abate a nuisance as hereinafter detailed, plaintiffs, as coadministrators of their son's estate, recovered on trial by jury a judgment for $4,200. Defendant' motion for a directed verdict at the close of the proofs and their subsequent motion for judgment non obstante were denied. Defendants have appealed.

Defendants own a parcel of land consisting of six or seven acres in the city of Detroit. Doing business as a partnership under the name of Dachille Trucking Company, defendants engaged in excavating sand from this property with a power shovel, and selling same for various construction uses. And as deep excavations resulted from the above operations, defendants for a charge per load permitted the dumping in excavated areas of dirt, broken concrete, and miscellaneous rubbish. To prevent interference by water with their excavating operations, defendants caused a hole or sump to be dug in the low portion of their excavated area; and as drainage water collected in this sump it was pumped through hose into the public sewer. At the time of the fatality which resulted in this suit, the sump, as stated in the circuit judge's opinion in denying defendants' motion for judgment non obstante, 'was rectangular in shape, over 100 feet in length and over 50 feet in width. Its depth varied, sloping on the longer sides from one foot at the sides to six feet in the center and deepening more abruptly on the shorter sides.' Shortly prior to the death of plaintiffs' son, defendants had permitted water to accumulate in the sump, and there is testimony that this water was stagnant and the surface covered with oily scum. Defendants introduced testimony to the effect that the above accumulation of water in the sump was due to the fact that the pump used to remove the water from the sump became out of repair.

On September 7, 1946, plaintiffs' decedent, Lester Graves, his younger brother, and another boy named Billie, about four years old, were playing about the sand pit and sump. Lester, who was six and one-half years of age, did not accidentally fall into the sump. Instead, as stated in plaintiffs' brief: 'Lester, the deceased, told his little brother and Billie that he was going in swimming, then he took off his clothes, and he went into the water, never to come up alive.'

Defendants' property was unenclosed. Pembroke Avenue was 139 feet north of the sump. An employee of defendants' was stationed in sort of a shack on the property. His duties were to collect the charges for dumping on the premises, and also to keep both adults and children from trespassing thereon, but this latter matter was by no means uniformly accomplished.

It appears from the record, and the parties agree, that plaintiffs' case was not tried on the theory that defendants maintained an attractive nuisance nor on the theory that plaintiffs could recover by proving only ordinary negligence on the part of defendants which was a proximate cause of the drowning of plaintiffs' decedent. Plaintiffs have not appealed from the ruling of the trial judge, who, in passing upon defendants' motion for a directed verdict said: 'Let the record show that the Court has taken the defendants' motion for a directed verdict under advisement under the Empson Act, and will submit the case to the jury on the theory of gross negligence only--willful and wanton misconduct. * * * I will likewise charge that contributory negligence is not involved because contributory negligence of the child or the parents is not a defense if gross negligence is proven.'

Appellants and appellees agree that the only issue raised on this appeal is: 'Did the trial court err in denying defendants' motion for directed verdict, and for judgment non obstante verdicto, and (in) submitting the case to the jury on the theory of gross negligence or willful and wanton misconduct?'

Appellees take the position, as did the trial judge, that in the aggregate the proof of negligent conduct on the part of the defendants about to be noted was sufficient to present a jury question as to defendants having been guilty of gross negligence--wilful and wanton misconduct--which was a proximate cause of the fatality here involved. The negligence charged, and as to which there was proof, was:

(1) That defendants allowed stagnant water to accumulate and remain in the sump, knowing that children of tender years, though trespassers, frequented the premises; (2) That defendants failed to erect fences or to provide effective guards to keep children of tender years away from the excavation, especially since it was known to defendants that these premises were more or less frequented by both adults and children; (3) That defendants failed to promptly replace the 'broken pump' which had been used to remove water from the sump; and (4) That defendants failed to abate the nuisance condition on their promises even after defendants, on complaint of parties residing in the locality, were found guilty of maintaining a nuisance, which conviction occurred eight or nine days before the death of plaintiffs' decedent.

Our review of this record brings the conclusion that the trial judge was in error in not granting defendants' motion for a directed verdict and in his later denial of defendants' motion for judgment non obstante veredicto. Defendants' business of excavating on their own property and disposing of sand was obviously a legitimate enterprise. The digging of a hole or sump in which to collect drainage water was a necessary incident to the business, and allowing water to accumulate in the sump on defendants' property was within their legal right. If it became stagnant it might become a nuisance and subject to abatement, but even so the presence of stagnant water was certainly not as much of an invitation or inducement of a boy to go swimming in the sump as it would have been if filled with water that was not stagnant. We do not find in the record that to defendants' knowledge any boy had previously gone swimming in this sump, or that any one had ever called to defendants' attention that...