Kinney v. Onsted

• Decision Date: 25 May 1897
• Citation: 113 Mich. 96,71 N.W. 482
• Court: Michigan Supreme Court
• Parties: KINNEY v. ONSTED.

71 N.W. 482

113 Mich. 96

KINNEY v. ONSTED.

Supreme Court of Michigan

May 25, 1897

Error to circuit court, Lenawee county; Victor H. Lane, Judge.

Action by Frank D. Kinney, administrator of George B. Daniels against John Onsted. Judgment for plaintiff, and defendant brings error. Reversed.

Salsbury & O'Mealey, for appellant.

Watts Bean & Smith, for appellee.

MONTGOMERY J.

This action was instituted by George B. Daniels in his lifetime to recover damages sustained by reason of the alleged defective condition of the defendant's premises. The material facts in the case, as disclosed by the evidence, are that the defendant was the proprietor of a grain elevator, which consisted of a building 22 feet wide and 40 feet in length. On the south side of this building there is a bridge 12 feet in width, with an approach leading up to it at either end, of the same width. A pair of rolling doors, 7 1/2 feet wide, open from about the center of the building onto this bridge or elevated platform. One means of approach to the office, which is in the elevator building, is to follow the driveway up to the platform, and across it through these doors. Near the edge of this platform is a railing fastened to posts spiked to the sills of the bridge or platform. The posts are 4 by 4, with 2 by 6 pieces spiked lengthways on top. The railing is 3 feet high. In front of the rolling doors a space of 10 feet wide is left, where there is no railing, having been left out to facilitate the loading of heavy articles into farmers' wagons. The portion of the railing east of this opening is 20 feet long before the grade portion of the bridge is reached. On the west of the opening there is a railing 10 feet long, on the level part of the bridge, and another railing on the west grade, 8 feet in length. Farmers, in delivering grain to the elevator, drove onto the bridge, and, by means of a spout attached to the wagon, ran the grain into the hopper. The testimony tends to show that, a few days prior to the injury to the plaintiff, there had been a runaway, and the railing had been damaged, the top piece being torn off from the posts, and the posts also weakened; that the railing had been straightened up in such manner that its appearance did not indicate its weakness to the casual observer. The plaintiff on the day in question, started to go to the elevator to buy a load of corn of the defendant. He went onto the bridge from the west part, well to the south side of the railing, and was passing in a northeasterly direction, to go through the rolling doors into the elevator building. If he had kept on in that direction, it would have brought him on the inside of the elevator, where his business with the proprietor was to be transacted; but it appears that at this time his son, Willis Daniels, and William Knapp, were on the bridge, unloading a load of wheat, and his son called to him, saying that he had some money for him. At that, plaintiff turned southeast, came up to the south side of the wagon, near the center, a distance of 15 or 16 feet, where his son was, and got the money. After he got it, he was talking with these two men a few minutes about the horses, and, while so talking, leaned against the railing, and it gave way, and he fell to the ground, and was injured. Upon this state of facts, the plaintiff recovered, and the defendant brings error, and contends that there is no case shown by the plaintiff's testimony entitling him to recover, and that the defendant was under no obligation to build a railing, or keep it in repair, for the plaintiff to lounge or sit upon or lean against. The plaintiff, on the other hand, contends that the case falls within the rule that where a party,...