Larned v. Vanderlinde

• Court: Supreme Court of Michigan
• Writing for the Court: HOOKER
• Citation: 165 Mich. 464,131 N.W. 165
• Decision Date: 08 May 1911
• Parties: LARNED v. VANDERLINDE.

165 Mich. 464
131 N.W. 165

LARNED
v.
VANDERLINDE.

Supreme Court of Michigan.

May 8, 1911.

Error to Circuit Court, Muskegon County; Clarence W. Sessions, Judge.

Action by Margaret Larned against Nicholas G. Vanderlinde. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before OSTRANDER, C. J., and BIRD, HOOKER, MOORE, and McALVAY, JJ.

[131 N.W. 165]

James E. Sullivan (Turner & Turner, of counsel), for appellant.

Cross, Vanderwerp, Foote & Ross, for appellee.

HOOKER, J.

The plaintiff, a customer of the defendant, fell downstairs in defendant's

[131 N.W. 166]

store. In an action for damages based on alleged negligence, the jury, who were permitted to view the premises, found a verdict in defendant's favor, and she, the plaintiff, has appealed.

We have endeavored to make from the testimony a substantially accurate plat of the store, which we attach, that the situation may be more easily understood.

IMAGE

The store was a furniture store, and fronted north. On the east side shelving extended the full length. Tables 4 feet wide set 2 1/2 feet from the shelving, extended to within 4 feet of the stairway down which plaintiff fell. These tables or counters were 2 1/2 feet high, and were used for displaying crockery. Plate glass windows covered the entire front, exclusive of doorway. We understand the doors were mainly of glass. The store was 40 feet or more wide. The stairway was four feet wide, with the opening exactly opposite the end of the counter, and four feet distant therefrom as we have said. On the west side of the stairs an elevator was situated, and its wainscoted shaft extended to the ceiling. A newel post four feet high and a railing extended to the end of the store on the east side of the stairway. The plaintiff entered the store between 12 and 1 o'clock, on what she said was a cloudy day, to make a small purchase, and by invitation followed the clerk to the rear part of the store. He went in the passage back of the counters and she outside. He went to the point marked ‘X,’ some four feet beyond the newel post, and took down a lantern chimney, and, as he turned to show or take it to her, he heard a noise and found that she had followed him beyond the end of the counter, and had fallen downstairs. She testified that she started to go where he was diagonally across from the end of the counter, and, not seeing the stairway, fell downstairs. She claimed that it was dark in the back end of the store; that she was not warned that there were stairs there, and did not notice them, although she also testified that her eyesight was good. She was watching the clerk, had no thought of a stairway, and ‘supposed she walked directly through to the back down that stairway.’ The court admitted testimony showing that for nine years the stairs had been used, and no accident had occurred there before. The errors relate, first, to the admission of testimony regarding the absence of accidents; second, omission to give two requests to charge on the subjects of negligence and contributory negligence; third, instructions given upon those subjects.

[1] 1. There is an absence of harmony in the decisions on the subject of the admissibility of proof of other accidents in negligence cases. In Michigan testimony of that kind has been held admissible in sidewalk and other highway cases, but its use has been limited to the question of notice of defects. See Dotton v. Albion, 50 Mich. 129, 15 N. W. 46;Moore v. Kenockee, 75 Mich. 332, 42 N. W. 944,4 L. R. A. 555;Campbell v. Kalamazoo, 80 Mich. 655, 45 N. W. 652;Girard v. Kalamazoo, 92 Mich. 610, 52 N. W. 1021;Corcoran v. Detroit, 95 Mich. 84, 54 N. W. 692;Alberts v. Vernon, 96 Mich. 551, 55 N. W. 1022;Moore v. Kalamazoo, 109 Mich. 176, 66 N. W. 1089;Gregory v. D. U. R., 138 Mich. 370, 101 N. W. 546;Karrer v. Detroit, 142 Mich. 335, 106 N. W. 64; 28 Cyc. 1487, 1491; 29 Cyc. 613. The general subject is discussed in 8 Enc. of Evidence, 926 et seq. See, also, Id. 878. We are of the opinion that it would not be competent under our cases for the plaintiff in a negligence case to make proof of other accidents for the only purpose of proving the condition, or dangerous nature of the defect complained of. One reason for this is that it would be the raising of collateral issues. Under such a rule, it would not be competent to prove an absence of accidents as tending to show an absence of negligence.

[2] 2. In plaintiff's second request, the

[131 N.W. 167]

court was asked to charge that it was the duty of defendant to guard the stairway by a railing or bar, or warn plaintiff, if that was impracticable, by actual notice, and that if the jury should find that defendant did neither, and the stairway was located where a person trading might step into it unawares, they should render a verdict for the plaintiff. The judge properly refused this for it imposed no duty of care on the plaintiff. Doubtless she stepped down the stairs without noticing that they were there, but she owed some care. The learned circuit judge said that it was not negligent to have the stairs there, but he did not relieve the defendant from the responsibility of care in their use.

[3] 3. The fifth request went so far as to ask an instruction that she could not be found guilty of contributory negligence, ‘even though she might have seen the opening had she looked,’ upon the theory that every one has the right to assume that the floor of a store is perfectly safe. Counsel asks us to apply to stairs rules that would be quite strict enough in cases of trapdoors or holes in the floor, where there was no reason to expect them, and where naturally they would not be seen. There was no error in refusing this request.

4. Counsel complains of the statement in the charge that ‘it appears by the undisputed evidence of the plaintiff herself that her sight was good, and not defective.’ It is said that, although she said so, the court should not have made this statement in view of the testimony that her eyes blurred. She did not testify that her eyes were blurred. It was shown that she told defendant a week after the accident that ‘the light blurred her eyes when she went into the store.’ No request to charge on this subject was made, and the fact stated by the court was unqualifiedly stated by plaintiff herself. Counsel argued this to the jury, and there is no reason to doubt that it was considered by them. Error is assigned upon the following charge: ‘The maintenance of this stairway was not in itself an act of negligence. You examined the premises and saw where the stairway was situated. You have heard all of the evidence in the case also as to the location and situation and condition of the stairway. This stairway was located at the rear, or nearly at the rear of this storeroom. It was located in a place where it was not negligence to maintain a stairway. In this day and age it is necessary and usual for merchants in their stores to have stairways, and there is nothing out of the ordinary in this stairway, and the question as to whether or not it was a dangerous place is dependent upon the conditions surrounding its location and dependent upon the circumstances surrounding this particular occurrence. One of the questions for you to determine in this case is whether or not it was light enough so that the plaintiff could have seen the stairway if she had looked. It was her duty to...