Gugel v. Sears, Roebuck & Company
| Decision Date | 31 August 1962 |
| Docket Number | No. 14689.,14689. |
| Parties | Richard F. GUGEL, Sr., Plaintiff-Appellee, v. SEARS, ROEBUCK & COMPANY, a New York Corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James K. Brooker, Bay City, Mich., for appellant, Smith, Brooker & Harvey, Bay City, Mich., Kahn, Adsit & Arnstein, Chicago, Ill., on the brief.
Peter F. Cicinelli, Saginaw, Mich., for appellee, Eugene D. Mossner, Irving M. Hart, Saginaw, Mich., on the brief.
Before MILLER, Chief Judge, WEICK, Circuit Judge, and STARR, Senior District Judge.
The plaintiff-appellee began this action in the circuit court of Saginaw County, Michigan, to recover damages resulting from his personal injuries sustained when he fell into an open grease pit in defendant-appellant's service garage, maintained in connection with its retail store in the city of Saginaw. The action was removed to the Federal court on the basis of diversity of citizenship and jurisdictional amount involved. It was tried to a jury, which returned a verdict for plaintiff in the amount of $7,850, upon which judgment was entered. Defendant-appellant appeals, contending that the district court erred in denying its motion for a directed verdict and submitting to the jury the questions of its negligence and plaintiff-appellee's contributory negligence, and also erred in denying its motion for judgment notwithstanding the verdict. The parties will hereinafter be referred to as plaintiff and defendant.
The facts relating to this accident may briefly be stated as follows: On January 24, 1959, at about 1:30 in the afternoon the plaintiff went to defendant's retail store in Saginaw to purchase a television set, parking his car on the street beside the store. When he returned to his car, he was unable to start it because the battery was dead. He then went to defendant's service garage adjoining its store to obtain help in starting it.
There were four open grease pits for the lubrication of cars, located in about the center of the service garage, arranged and spaced as shown in plaintiff's exhibit 1 attached hereto. Each of the pits was about 6 feet deep, 15 feet and 11 inches long, and 42 inches wide, and around the edge of each pit was a steel rim painted red, extending about 4 inches above the surface of the floor. The areaway or distance between the sides of pits 1 and 2 and between the sides of pits 3 and 4 was 72 5/8 inches, and the distance between the ends of pits 1 and 3 and the ends of pits 2 and 4 was 49 inches. The service garage was about 81 feet long, 42 feet wide, and 12 feet high, and was lighted by 15 to 20 300-watt light bulbs hanging about 6 inches below the ceiling. Each of the grease pits was lighted from within by several 150-watt light bulbs. When plaintiff entered the service garage, there were cars over all four grease pits.
He explained his car trouble to the defendant's auto-accessories manager, Mr. Buckingham, and was advised that as soon as a mechanic, James Dorr, finished working on the car over pit 1, he would assist plaintiff in starting his car. Plaintiff followed Mr. Buckingham between the ends of pits 1 and 3 and then to the north between pits 1 and 2 to about the front of the car over pit 1, where he was introduced to Dorr, and arrangements were made for Dorr to assist him. Plaintiff stood beside pit 1 for 10 or 15 minutes, during which time he talked with the owner of the car being serviced in that pit. Then, with mechanic Dorr leading him, he walked south between pits 1 and 2, and just before he reached the end of pit 1, he fell into it and was injured.
Plaintiff claims that the defendant was negligent, first, in failing to keep the service garage adequately lighted; second, in failing to keep the grease pits properly guarded by the use of chains, guard rails or other protective device; and third, in the failure of defendant's employee to lead him along a safe course or path while traveling through the service garage.
At the close of plaintiff's proofs, and again at the close of all proofs, the defendant moved for a directed verdict in its favor on the ground that plaintiff had failed to prove negligence on its part, and on the ground that plaintiff was guilty of contributory negligence as a matter of law. The trial court took these motions under advisement and submitted the case to the jury, which returned a verdict for plaintiff of $7,850. The defendant's motion for judgment notwithstanding the verdict or for a new trial was denied. In its brief defendant states that it withdraws its motion for a new trial.
We must examine the testimony and determine whether the trial court erred in submitting to the jury the questions of fact as to defendant's negligence and plaintiff's contributory negligence. Plaintiff was 55 years old and testified that although he had had cataract operations on both eyes, his vision with glasses was normal. He further testified as follows:
Plaintiff further testified on cross examination:
A mechanic employed by defendant testified regarding lighting in the service garage as follows:
James Dorr, the mechanic who was directed to assist plaintiff in starting his car, testified regarding the accident as follows:
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Gowdy v. United States, 4897.
...to protect those on or about the platform as business invitees." 366 Mich. at 601, 115 N.W.2d at 293. See also Gugel v. Sears, Roebuck & Company, 308 F.2d 131 (C.A. 6, 1962), cert. den. 371 U.S. 962, 83 S.Ct. 542, 9 L.Ed.2d 510 Prosser also recognizes that circumstances may transform an obv......
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Seymour v. Gulf Coast Buick, Inc., 42650
...said.' This case was reversed and remanded. A Michigan case in some respects similar to the facts in this case is Gugel v. Sears, Roebuck & Co., 6 Cir., 308 F.2d 131 (1962). The plaintiff fell into an open grease pit in the premises of the defendant's service garage. Plaintiff was following......
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Dockham v. Marr
...to proceed. In commenting on cases cited by defendants as seeming to support their position, plaintiff quotes from Gugel v. Sears, Roebuck & Co., 6 Cir., 308 F.2d 131, the 'It can be argued that under these earlier decisions of the Supreme Court of Michigan the plaintiff in the present acti......
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Jones v. City of Ypsilanti
...upon them, and are entitled to do so even if they have knowledge of a defect like the one in question.' See also Gugel v. Sears Roebuck & Co., (C.A.6, 1962), 308 F.2d 131, 139. the Court, holding that the question of contributory negligence was for the jury, said: 'We are convinced that und......