Johnson v. McMillan

• Decision Date: 02 March 1888
• Citation: 36 N.W. 803,69 Mich. 36
• Court: Michigan Supreme Court
• Parties: JOHNSON v. MCMILLAN ET AL.

36 N.W. 803

69 Mich. 36

JOHNSON v. MCMILLAN ET AL.

Supreme Court of Michigan

March 2, 1888

Error to circuit court, Wayne county; JOHN J. SPEED, Judge.

Action by Mattie Johnson against George and Robert McMillan for personal injuries sustained by plaintiff by falling into a coal-hole on defendants' premises. The trial court, at the close of plaintiff's testimony, directed a verdict for defendants and judgment accordingly. Plaintiff brings error.

CHAMPLIN J.

On the 19th of June, 1885, as the plaintiff was walking upon the sidewalk in front of No. 7 Fort street west, in the city of Detroit, she stepped on the cover of a coal-hole, which tilted and projected her foot and limb through the coal-hole and she was unable to extricate herself without assistance which was rendered by a Mr. Edward W. Simpson, who saw her fall. She received injuries which incapacitated her from pursuing her daily avocation for several months. The premises No. 7 Fort street west were owned by defendants. June 1 1885, the defendants had rented the premises to Messrs. Cook & West, and they were in possession at the time of the accident. The terms of the lease were not proven, but it is not claimed that there was any covenant which bound defendants to keep the premises in repair. The tenants had between the time of renting on June 1st and the 19th, at the time of the accident, ordered and caused to be delivered through the coal-hole in question a quantity of coal. In order to fix any liability upon the defendants, the plaintiff, in her declaration, avers as follows: "And plaintiff avers that a short time prior to the receiving of said injuries said premises above described were leased by said defendants to Thomas J. West and Benjamin C. Cook, upon an oral lease, and, as plaintiff avers, at the time of the leasing, and for a long time prior thereto, said scuttle-hole in said sidewalk abutting and adjoining said premises, and which forms a part of said premises, with the lid or covering and fastening, were out of repair and unsafe as above set forth, and in the improper and unsafe condition as above described, at the time of said leasing; and plaintiff avers said defendants did negligently, wrongfully, willfully, and knowingly lease said premises so out of repair and in the unsafe condition as herein alleged." The scuttle-hole is thus described in plaintiff's declaration: "Said scuttle-hole was an opening through said sidewalk about to-wit, fourteen inches, or thereabouts, in diameter, leading into the vault below, in which opening was placed an iron thimble or cylinder, to-wit, one-eighth of an inch thick, about two feet in depth or more, with a flange or shoulder at the top, which extended out and rested on the sidewalk into which said flange was sunk until it was even with the surface of the sidewalk. This opening was covered by an iron plate, to-wit, 14 inches in diameter, which was let down into the top of the iron thimble about, to-wit, one-eighth of an inch, until said cover was even with the surface of said sidewalk. At the center of the inside of said iron cover was a ring from which hung down a rope used to lock said cover." The negligence of the defendants is thus set out: "The defendants, on the day and year aforesaid, did willfully, negligently, wrongfully, and improperly furnish said scuttle-hole thimble, and the lid or covering of said scuttle-hole, which forms a part of said sidewalk and its fastenings, and did permit the same to become so badly, unsafely, and improperly out of repair in this, that the edge of said cover and thimble became so worn that said cover fitted so loosely that on said 19th day of June, and for a long time prior thereto, said cover would not stay in place, and would slip up when any one using said highway stepped on said cover, and that the rope used in fastening said cover became worn, and was not strong enough and sufficient to hold said cover tight to the thimble, and prevent it from working loose; and scuttle, thimble, or cylinder, cover, and fastenings thereof were inadequate and unsafe in this, that said cover plate did not sink sufficiently deep into said thimble, and did not fit tightly." When she came to make her case upon the trial, after showing how her injuries were received, and their extent, she introduced Mr. Edward W. Simpson, the person who assisted her at the time of the injury. He testified...