Grover v. Simons

• Decision Date: 06 June 1955
• Docket Number: No. 11,11
• Citation: 70 N.W.2d 775,342 Mich. 480
• Parties: , 66 A.L.R.2d 325 Leah D. GROVER, Administratrix of the Estate of John L. Phippard, Deceased, Plaintiff and Appellant, v. Frank SIMONS, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 775

70 N.W.2d 775

342 Mich. 480, 66 A.L.R.2d 325

Leah D. GROVER, Administratrix of the Estate of John L Phippard, Deceased, Plaintiff and Appellant, v. Frank SIMONS, Defendant and Appellee.

No. 11.

Supreme Court of Michigan.

June 6, 1955.

Michael Carland, Owosso, James M. Pearson, Flint, for plaintiff and appellant.

Milton G. Schancupp, Owosso, for defendant and appellee.

Before the Entire Bench.

CARR, Chief Justice.

This case has resulted from an accident occuring in the restaurant of defendant Simons, in the City of Owosso, on October 9, 1947. In company with two friends, John L. Phippard, whose estate is represented in the present case by the ancillary administratrix, entered the restaurant of defendant for the purpose, as it is claimed, of procuring a lunch. The party was en route from Grand Rapids to Malverne, New York. According to testimony offered on behalf of plaintiff on the trial in circuit court, Mr. Phippard asked to be directed to the men's toilet and was so directed by defendant. His companions, in the meantime, sat down at the lunch counter and ordered doughnuts and three cups of coffee. Mr. Phippard did not return immediately from the rest room and one of his companions, becoming alarmed, investigated to determine the reason for the delay. It was discovered that Mr. Phippard, as indicated by the general situation, had fallen through a trap door in the floor of the rest room and was on the basement floor beneath. He sustained a badly fractured leg. Following his removal from the basement and the restaurant, he was given medical and hospital treatment.

Claiming that the accident and his resulting injuries were caused by negligence on the part of the defendant, Mr. Phippard instituted an action to recover damages. Issue in the case was duly joined but before the cause was reached for trial Mr. Phippard died. Such death, it is agreed, was not connected in any way with, or occasioned by, the injuries in question here. Probate proceedings were instituted in the State of New York, with ancillary administration in this State. Plaintiff was appointed as ancillary administratrix by the probate court of Shiawassee county, and on motion an order of substitution was entered.

At the conclusion of the proofs on the trial, counsel for defendant moved for a directed verdict. Decision thereon was reserved, the case submitted to the jury, and a verdict in the sum of $3,500 returned. Defendant thereupon moved for judgment notwithstanding the verdict, which was granted. The opinion filed by the trial judge indicates that he questioned whether the proofs were sufficient to establish actionable negligence on defendant's part, and further stated, in substance, that if there was such negligence the right to recover damages was barred by the contributory negligence of Mr. Phippard. Claiming that the court erred in rendering judgment for defendant on the motion, plaintiff has appealed.

In determining the issues presented, the testimony must be construed as strongly as reasonably possible in plaintiff's favor. Hulett v. Great Atlantic & Pacific Tea Co., 299 Mich. 59, 63, 299 N.W. 807; Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728; Cole v. Austin, 321 Mich. 548, 33 N.W.2d 78. Under plaintiff's proofs, Mr. Phippard was an invitee, and the duties resting on defendant must be determined accordingly. In operating the restaurant he was not an insurer of the safety of his customers, but the burden rested on him to use proper care for their safety. Hulett v. Great Atlantic & Pacific Tea Co., supra. It is not disputed that the men's toilet, or rest room, was maintained for the use and accommodation of patrons.

At the time of the accident Mr. Phippard was alone in the rest room. So far as this record discloses there was no witness of the accident available at the time of the trial. In consequence the physical facts, and the inferences that may be drawn therefrom, become of special significance. Whether Mr. Phippard went to said room pursuant to the direction of the defendant, as plaintiff's witnesses claimed, or without such direction, as defendant insisted on the trial, is not material. It is conceded that the door was marked in such manner as to indicate the purpose and use of the room, which, it is agreed was 9' 6"'' in length by 3' 8"' in width, the door being located at the south end of the room. The trap door in the floor was approximately 34"' wide. It was about 3 feet from the door and, when opened, was supported by a prop or stick.

In using the room it was necessary to pass over the trap door. The physical facts clearly indicate that it was open when Mr. Phippard entered the rest room and that he fell through the opening, which was approximately 34"' in width by 5 1/2 feet in length, into the basement. Defendant insisted on the trial that he was not aware that the trap door had been opened and left in that position and that, in fact, it had been closed a short time previously. He testified also that the stairs to the basement beneath the trap door were not used other than by himself, his employee Marshall Howe, and a meter reader. As a witness for defendant, Mr. Howe stated that the dishwasher was on duty in the restaurant prior to the accident, but he did not know whether she went to the basement. There is no testimony indicating that the meter reader was on the premises on the day in question. In the absence of such proof it may not be assumed that he opened the trap door, in order to obtain access to the basement, and left it open. Neither may it be assumed that some unauthorized person did so. The safety of patrons of the restaurant going to the rest room required that the trap door be kept closed. It does not appear, however, that defendant exercised any specific precautions with reference to it.

There were no windows in the rest room through which light might enter. There was an electric light therein, suspended by a cord from the ceiling, but the testimony is in dispute as to its size and effect. On behalf of plaintiff the testimony of the two companions of Mr. Phippard, who went through the rest room to the basement in order to assist him therefrom, was to the effect that the light was dim, reference being made in such testimony to a 25-watt light. On behalf of defendant it is claimed that a 60-watt light had been installed the day prior to the accident, and that the room was brightly lighted. There was thus a direct conflict in the testimony. The matter of lighting conditions was obviously important as bearing on the alleged negligence of defendant, and also on the claimed contributory negligence of Mr. Phippard. The issue was one for determination by the jury, which evidently resolved it in favor of plaintiff's claims.

Bearing in mind the nature of defendant's duty in the premises, the location of the trap door, the testimony of plaintiff's witnesses as to lighting conditions in the room, the fact that access to the basement through the trap door was limited, according to defendant's claims, in the manner set forth in his testimony, that no precautions were exercised to see that said door was not inadvertently left open, and that there is no basis for an assumption or inference that some unauthorized trespasser, or other person, was responsible for the situation, we think that the question of defendant's negligence was for the jury to determine. Construing the testimony as to the physical facts, and the inferences to be drawn therefrom, in favor of plaintiff, the conclusion follows that defendant was chargeable with knowledge of the situation existing in the rest room. Wine v. Newcomb, Endicott & Co., 203 Mich. 445, 169 N.W. 832; Hulett v. Great Atlantic & Pacific Tea Co., supra.

This brings us to a consideration of the question whether, if defendant was negligent, plaintiff's decedent was guilty of contributory negligence as a matter of law. As above noted, the trial judge, in granting the motion for judgment notwithstanding the verdict, determined this issue in favor of the defendant. Unquestionably the obligation rested on Mr. Phippard to exercise reasonable care for his own safety, the measure of care that an ordinarily careful and prudent person would have exercised under the same or like circumstances. On the record before us we do not think it can be said, as a matter of law, that he failed to do so. He had no reason to anticipate that there was in the floor of the rest room an open trap door, and that the taking of a couple of steps into the room might well result in causing him to fall through the opening into the basement. No...