Nash v. Lewis

• Decision Date: 11 June 1958
• Docket Number: No. 36,36
• Citation: 352 Mich. 488,90 N.W.2d 480
• Parties: Ruby NASH, Plaintiff and Appellant, v. Arthur LEWIS and Emma Lewis, his wife, d/b/a Lewis Inn, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 480

90 N.W.2d 480

352 Mich. 488

Ruby NASH, Plaintiff and Appellant, v. Arthur LEWIS and Emma Lewis, his wife, d/b/a Lewis Inn jointly and severally, Defendants and Appellees.

No. 36.

Supreme Court of Michigan.

June 11, 1958.

Demel & Silitch, Detroit, for appellant.

Ward, Plunkett & Cooney, Detroit, for defendants and appellees.

Before the Entire Bench.

EDWARDS, Justice.

Plaintiff received serious fractures of her left leg as she was leaving the premises of defendants' tavern on June 26, 1955, at approximately 9:00 p. m. Claiming that her injuries resulted from defendants' negligence, the nature of which will be more fully described later, plaintiff sued and received a jury verdict in the sum of $8,323.70. Motions for a directed verdict having been reserved by the court under the Empson act,* defendants subsequently moved for judgment notwithstanding the verdict and the circuit judge granted this motion. Plaintiff now appeals to this Court, claiming error in the granting of said motion.

In such a situation we view the facts in the light most favorable to the plaintiff since this apparently was the view of them taken by the jury. White v. Herpolsheimer Co., 327 Mich. 462, 42 N.W.2d 240, 26 A.L.R.2d 667; Goldsmith v. Cody, 351 Mich. 380, 88 N.W.2d 268. We do not think we can improve in this regard upon plaintiff-appellant's own version thereof contained in her brief, and for purposes of this decision we accept the following as the statement of facts to which we devote our attention 'The facts most favorable to plaintiff's case indicate that as she was leaving defendants' tavern, approaching the open front door:

'1. She observed the mat on the landing outside the door, and it looked perfectly safe.

'2. She proceeded to step down upon the mat.

'3. The mat slipped under her foot, causing her to fall and injure herself.

'The facts, viewed in the same light, further show:

'1. That the mat did not cover the entire landing, nor was it fastened in any way to the landing.

'2. That there was sand, debris, stones and pebbles on the landing in and about the mat, which were discovered by the plaintiff after she had fallen and was sitting on the mat and landing for some time prior to the arrival of the ambulance.

'3. That the landing upon which the mat rested was surrounded with a large parking area covered with sand, stones, pebbles and crushed slag.

'4. That the stones and pebbles, etc., found on the landing and embedded in the mat (some of which were still embedded in the mat at the time of the trial) came from the parking area.

'5. That defendants were fully aware of the fact that the stones, etc., in the parking area were tracked onto the landing by patrons walking from the parking area into the tavern.

'6. That the defendant Mrs. Lewis testified that they had a full-time janitor who swept the landing every morning, 7 days a week, and removed and cleaned under the mat.

'Whereas the janitor in question, Mr. Allen B. Newman, testified that in June of 1955, the time of the accident, he worked for the defendants at the tavern on week ends only.

'7. Also, the defendant Mrs. Lewis testified that she did not actually examine the mat in question when she visited the premises around noon of the day in question, and defendants' witness, Mr. Newman, could only state that the slab was swept by him as a routine job each morning.

'8. That assuming the mat and landing were swept in the morning, nothing further was ever done about said pebbles, etc., which accumulated on the landing and mat throughout the day and evening.'

As to the crucial matters with which we will be concerned, we quote the following from plaintiff's testimony which is apparently the basis for the statement above pertaining to 'sand, debris, stones and pebbles on the landing in and about the mat':

'Q. As you were down on the mat there, on the landing, did you observe that area? A. It was dirty.

'Q. Dirty, what do you mean? A. Grit and little pebbles.

'Q. Were they on the landing? A. They were on the landing.

'Q. Were there any pebbles or grit in and about the mat? A. Yes.'

It should be noted also that June 26, 1955, was a Sunday when the testimony shows the janitor to have been on duty.

The declaration in plaintiff's cause does not contend that there was anything inherently dangerous in the rubber mat at the entranceway beyond the fact that there were 'sand' and 'pebbles' underneath said mat and the fact that the mat was not fastened down.

The mat which was an exhibit at trial and before this Court is an ordinary doormat of common usage. In size, the mat is 17 inches wide by 25 1/2 inches long. It is made of strips which appear to have been cut from rubber tires, approximately 5/8 inch in height and 3/8 inch in thickness. These rubber and fabric strips are so arranged as to leave open spaces which approximate triangles with a 1/2 inch base and 1 1/4 inch height. The mat is heavy and obviously designed for maximum friction on any surface on which it is placed. In granting the motion for verdict non obstante veredicto, the trial judge said as follows:

'Viewing the proof submitted by the plaintiff in the light most favorable to her, the court is of the opinion that the defendants' motion should be granted.

'The plaintiff has not made and did not make a case for the jury. Whether the case is decided on the basis of the proof submitted by the plaintiff or on the basis of all of the proof submitted, the conclusion reached must be the same. Plaintiff did not prove negligence. Even if it could be said that a...