Honorl v. J. L. Hudson Co.

• Citation: 160 N.W.2d 513,10 Mich.App. 623
• Decision Date: 02 April 1968
• Docket Number: Docket No. 1538,No. 1,1
• Parties: Rose HONORL, Plaintiff-Appellant, v. J. L. HUDSON COMPANY, a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan (US)

Page 513

160 N.W.2d 513

10 Mich.App. 623

Rose HONORL, Plaintiff-Appellant, v. J. L. HUDSON COMPANY, a Michigan corporation, Defendant-Appellee.

Docket No. 1538.

Court of Appeals of Michigan, Division No. 1.

April 2, 1968.

Released for Publication Aug. 16, 1968.

Rehearing Denied July 2, 1968.

Samuel Posner, Posner & Posner, Detroit, for plaintiff-appellant.

Alexander, Buchanan & Conklin, Detroit, for defendant-appellee.

Before FITZGERALD, P.J., and McGREGOR GREGOR and LEVIN, JJ.

FITZGERALD, Presiding Judge.

On December 8, 1959, plaintiff, a month short of her 67th birthday, was attempting to get from the first floor to the basement in defendant's store. The store was crowded with Christmas shoppers, and, as, plaintiff approached the stairway, she observed a number of people standing in the area near the top of the stairs and blocking the right side of the approach to the stairway. In order to avoid the people, plaintiff started down the stairs on the left side of the stairway and then attempted to cross over to the right side. As she was reaching for the handrail on the right side, she lost her balance and fell, sustaining personal injuries.

Evidence adduced at the trial showed that the elevators and escalators in defendant's store were running and that there were no supervisory employees directing crowds at the top of the stairs.

Plaintiff instituted a suit for damages in 1961 and the case was tried before a jury in November of 1965. Plaintiff was the only witness at the trial and was awarded $1,000 by the jury. The jury verdict was subsequently set aside by the trial court and judgment notwithstanding the verdict entered for defendant on the grounds that plaintiff was guilty of contributory negligence which should have barred her relief.

Plaintiff now appeals to this Court seeking to set aside the judgment N.O.V. and restore the original judgment by the jury. We are asked to re-examine the record and determine the correctness of the trial court's finding that plaintiff was guilty of contributory negligence following the decision of the jury to the contrary. The record shows that the issue of contributory negligence was made a part of the charge of the trial court to the jury, and the jury chose to find that defendant was negligent while plaintiff was not.

Both parties concede that the facts must be reviewed by this Court in a light most favorable to plaintiff, as this is apparently the view taken by the jury. See Nash v. Lewis (1958), 352 Mich. 488, 90 N.W.2d 480; Also see Kroll v. Katz (1965), 374 Mich. 364, 132 N.W.2d 27. We will agree with plaintiff that a storekeeper is under a duty to use reasonable care to provide reasonably safe premises for his customers. See Winfrey v. S. S. Kresge Co. (1967), 6 Mich.App. 504, 149 N.W.2d 470. For plaintiff to recover from such a storekeeper for injuries suffered on his premises, plaintiff must also show that this duty to use reasonable care was breached by the storekeeper and that the breach was the proximate cause of the injury. Winfrey v. S. S. Kresge Co., supra. Such breach might be occasioned if the storekeeper failed to have knowledge of a dangerous condition which has existed a sufficient langth of time for him to be aware of it. Winfrey v. S. S. Kresge Co., supra. Plaintiff testified that she thought defendant often had supervisors at the top of the stairs on other occasions and she contends that defendant breached a duty of care to her at the time of her falling by not having a supervisor present during the obvious rush and crush of Christmas shopping. The jury considered the evidence and returned a verdict for plaintiff, holding, in effect, that defendant was negligent. The jury must consider the issue if reasonable men could honestly reach different conclusions from the facts of the case in determining the contributory negligence of the plaintiff. Uren v. Toth (1966), 5 Mich.App. 170, 146 N.W.2d 137. Kroll v. Katz, supra, following the holding in Sparks v. Luplow (1963), 372 Mich. 198, 125 N.W.2d 304. In the present case, after the jury had returned its verdict, the trial court vacated it by granting defendant's motion for a judgment notwithstanding the verdict, stating that plaintiff was contributorily negligent.

Defendant contends that this procedure is proper in the present case as the facts do not permit reasonable men to differ as to the condition of the staircase being open on the left, clear and not slippery. We have re-examined the record and agree with the conclusion that plaintiff was negligent. We will dispose of the issue of plaintiff's contributory negligence by noting that the left side of the stairway was open, that elevators and escalators were running, and that plaintiff attempted to cross the top of the stairs to reach the right handrail because that is where 'I always go'. See Jones v. Michigan Racing Association (1956), 346 Mich. 648, 78 N.W.2d 566, where the Court said:

'Similarly here, plaintiff is guilty of the same neglect he charges to defendant. If defendant was guilty of negligence in ignoring the existence of a condition of which it knew or should have known and which it should have foreseen would be dangerous to invitees, then plaintiff, who should have seen, as he did, and been aware, as he was, of its existence and have known, as he said he did, that it was dangerous, was equally guilty of contributory negligence for having ignored it and acting, as did plaintiff in Shorkey, in disregard of that danger.'

The Court therein cited Shorkey v. Great A. & P. Tea Co. (1932), 259 Mich. 450, 243 N.W. 257, as to duties of both parties in such a situation. Plaintiff's attempt to go about her normal way of descending the staircase when thst staircase was temporarily blocked at the top by a crowed becomes a proximate cause of her injury. See Socony Vacuum Oil Co. v. Marvin (1946), 313 Mich. 528, 21 N.W.2d 841.

The remaining question is whether the trial court acted correctly in granting the judgment notwithstanding the verdict. Defendant assumes that this action was proper without citing supporting authority, with the contention that since there clearly was contributory negligence, the court could properly overturn any verdict of the jury to the contrary. The issue is not that simple. The trial court included a discussion of plaintiff's contributory negligence in the charge to the jury. Yet the jury did find the liability to be defendant's. Plaintiff cites to this Court the decisions in Kroll v. Katz, supra, and Uren v. Toth, supra, where the trier of fact must determine the question of contributory negligence where reasonable minds may differ. However, GCR 1963, 515 (originally the Empson act allows the court to submit the entire case to the jury with proper instruction and then enter judgment notwithstanding the verdict if it could determine as a matter of law that the moving party was entitled to a directed verdict on the grounds that there was insufficient evidence presented for reasonable minds to differ. See GCR 1963, 515.2, and 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), judgment notwithstanding the verdict, pp. 531, 532.

In accordance with the foregoing discussion of contributory negligence, we find that the trial court did not abuse its discretion in holding that reasonable minds could not have differed as a plaintiff's contributory negligence in the present case. The question of fact becomes a question of law and is properly disposed of with the judgment notwithstanding the verdict. The fact that the jury has reached a different conclusion does not mean that it was acting correctly.

Decision of the court in setting aside the verdict is affirmed, without costs.

LEVIN, Judge (dissenting).

The defendant had a duty to keep its store premises reasonably safe for public use, and, if a condition caused by others made the premises unsafe, to correct that condition within a reasonable time after it learned or should have learned of the potential for harm. Hulett v. Great Atlantic & Pacific Tea Co. (1941), 299 Mich. 59, 67, 299 N.W. 807; Winfrey v. S. S. Dresge Co. (1967), 6 Mich.App. 504, 149 N.W.2d 470, leave to appeal granted (1967), 379 Mich. 768.

As part of its program for maintaining reasonably safe store premises, the defendant provided a handrail on the right side of the staircase which plaintiff attempted to descend. Plaintiff asserts that the right railing was blocked at the top of the staircase by a crowd, that the assembling of the crowd and the resultant obstruction of the railing from ready access and creation of potential harm to the plaintiff should have been anticipated by the defendant, and constituted a condition on the premises which defendant was obliged to correct if the premises were to be reasonably safe. Plaintiff further testified that the defendant had customarily provided a supervisor who prevented formation of crowds at the staircase.

'where a party has habitually or frequently taken certain precautions on prior occasions which were omitted on the occasion in question, this fact should be received against him as an admission that he perceived the risk and deemed the precaution appropriate and feasible.' 2 Harper and James, Law of Torts, § 17.3, p. 981. ¹

From plaintiff's testimony, the jury could properly find a railing necessary to make the premises reasonably safe for her use, ² that the assembling of the crowd prevented her from using the railing, ³ and that defendant should have anticipated the clogging of access to the railing and prevented the crowd from assembling by providing the supervision which, according to plaintiff's testimony, was customarily provided. On the basis of such findings, the jury could conclude that the defendant's failure to provide such supervision on this occasion constituted negligence.

Plaintiff testified that, not being able to grasp the right railing, she walked around the crowd and started down the staircase on the...