Nezworski v. Mazanec
| Decision Date | 17 March 1942 |
| Docket Number | No. 63.,63. |
| Citation | 301 Mich. 43,2 N.W.2d 912 |
| Parties | NEZWORSKI v. MAZANEC. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action for personal injuries by Gladys A. Nezworski against Bernard C. Mazanec. From a judgment for plaintiff, defendant appeals.
Affirmed.Appeal from Circuit Court, Gogebic County; Thomas J. Landers, judge.
Before the Entire Bench.
Charles M. Humphrey and Charles M. Humphrey, Jr., both of Ironwood, for appellant.
W. F. Pellow, of Bessemer (S. W. Patek, of Ironwood, of counsel), for appellee.
This case involves plaintiff's claim for injuries sustained about 11:30 o'clock Christmas Eve, December 24, 1938, when she fell down a cement stairway leading to the basement of defendant's restaurant and tavern in the city of Bessemer.
Plaintiff began suit October 7, 1939, alleging, in substance, that her injuries were caused by defendant's negligence in maintaining a concrete platform, doorway, and basement stairway in a dangerous condition, in failing to properly light said platform and stairway, and in failing to warn plaintiff of such dangerous condition. Defendant filed answer generally denying plaintiff's charges of negligence and alleging contributory negligence and other defenses hereinafter discussed.
The case was tried before a jury in March, 1940. At the conclusion of plaintiff's proofs defendant moved for directed verdict. The court denied such motion, stating:
‘As in all motions for a direction of verdict, the evidence must be construed in a light most favorable to the plaintiff, and the court feels the evidence is such that the minds of reasonable men might disagree as to the negligence of the defendant and as to the contributory negligence of the plaintiff; for that reason I feel it is a question of fact for the jury to decide and the motion will be denied.’
At the conclusion of all proofs defendant renewed his motion for directed verdict, and such motion was again denied. The jury returned verdict of $4,000 for plaintiff, on which judgment was entered. Motion for new trial was denied; and defendant appeals.
Defendant contends, in substance, that he did not have control of the part of the premises where the accident occurred and, therefore, is not liable for plaintiff's injuries; that plaintiff, at the time and place of her accident, was not an invitee, but was a trespasser to whom he owed no duty; that plaintiff was guilty of contributory negligence as a matter of law; that the verdict is grossly excessive; that the court erred in its charge to the jury and in failing to give requested charges; that the verdict is contrary to the preponderance of the evidence; and that the court erred in not granting defendant's motion for new trial.
To present an understandable picture of the circumstances of plaintiff's accident, we must describe defendant's restaurant and tavern premises in considerable detail. Such premises, located on the east side of South Sophie street, consisted, in part, of a large front room on the ground floor, referred to by defendant as the ‘restaurant,’ an adjoining small room in the rear, which we will refer to as the ‘rear’ room, a kitchen, cement stairway, and basement. Such rear room was 14 feet long, north and south, and 9 feet 10 inches wide, east and west. A door, 6 feet 10 inches by 2 feet 10 inches, with clear opening of 2 feet 9 inches, was located in the south wall of the rear room near the southeast corner, the east jamb of the door being 7 inches from the east wall of the room. Such door, which swung to the north into the rear room, opened onto an enclosed cement platform or ‘stair landing.’ The platform was 5 feet 2 inches long, north and south, and 3 feet 1 inch wide, east and west. On the east side of the platform was a door, which bolted on the inside, leading to the alley in the rear of defendant's premises. On the west side of the platform was an open cement stairway, of the same width as the platform, which led into the basement. The west edge of such platform was about 4 inches east of the west side of the doorway leading from the rear room; that is, the door extended about 4 inches further west than the platform. There was a steel edging or angle nosing of about 1 1/4 inches on the west edge of the platform and also on the edge of each step of the stairway. The stairway had an iron handrail on the north side, but there was no rail on the south side. The platform was an inch or two lower than the floor of the rear room, and the threshold of the connecting door was about 2 inches higher than the floor of the rear room. An architect, who prepared a sketch of the premises, testified, in part, regarding the platform, stairway, and lighting, as follows:
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There was an electric light located in the stairway which lighted both the platform and stairway, but the testimony indicates such light was not turned on at the time of plaintiff's accident. An electric light fixture was located in approximately the center of the ceiling of the rear room and, when the door in the south wall was open, the light from such fixture, striking through the doorway at an angle, illuminated the cement platform, except the westerly few inches, which were shadowed. The above-mentioned architect testified further:
Defendant had occupied the premises, which he rented under oral lease on a month-to-month basis, for about five years. There had been no change in the construction of the rear room, platform, or stairway during his occupancy. He had made daily use of the platform and stairway, and used the basement for storage of draught beer.
On Christmas Eve plaintiff, then 20 years 6 months old, was one of a group of young people having a prearranged Christmas party in defendant's restaurant and tavern. Plaintiff arrived with a girl friend about 11 o'clock. Other members of the party had arrived earlier. They had brought presents for each other and were having a good time. They were using both the front and rear rooms of defendant's premises. Defendant testified that ‘patrons were invited not only to use the front portion of the restaurant, but also invited to use this inner rear room.’ Several witnesses testified that the door in the south wall of the rear room, leading to the platform and alley, was open part of the time during the evening; that during the evening several of the young people went through such door onto the platform and out into the alley. Defendant testified that the door was not locked; that he had never been given at key for it; and that the door was kept shut by a knife inserted in the door jamb. Plaintiff and other patrons were not notified against using the south door of the rear room or the platform which led to the alley and basement. There were no notices or warning signs regarding the condition and use of the doorway, platform, alley, or stairway.
Plaintiff testfied, in substance, that she was sitting in the rear room, that it became hot and stuffy, and that she decided to go into the alley for fresh air; that the door leading onto the platform and to the alley was open. She testified further that she stepped over the threshold of the door with her right foot; that the front part, the ball of her foot, landed on the cement platform and the back part of her foot was over the west edge of the platform, causing her to lose her balance and fall backward down the cement stairway. She sustained two skull fractures and other injuries which necessitated hospital confinement for several weeks and thereafter confinement at home. There was testimony that at the time of the trial, more than a year after the accident occurred, plaintiff had not entirely recovered from her injuries. Plaintiff testified, in part, regarding her accident, as follows:
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