Nezworski v. Mazanec, No. 63.

CourtSupreme Court of Michigan
Writing for the CourtSTARR
Citation301 Mich. 43,2 N.W.2d 912
PartiesNEZWORSKI v. MAZANEC.
Docket NumberNo. 63.
Decision Date17 March 1942

301 Mich. 43
2 N.W.2d 912

NEZWORSKI
v.
MAZANEC.

No. 63.

Supreme Court of Michigan.

March 17, 1942.


Action for personal injuries by Gladys A. Nezworski against Bernard C. Mazanec. From a judgment for plaintiff, defendant appeals.

Affirmed.

[2 N.W.2d 914]

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.

STARR, Justice.

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

[2 N.W.2d 915]

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:

‘It appears to me that this stairway leading to the basement is what is usually known as a hatchway; in other words probably a few years ago, that hatchway was covered with doors and later they built a shed. The hatchway is constructed of concrete and the hatchway is south of the private dining (rear) room. * * *

‘Q. Now, having in mind the doorway leading to the concrete platform on the south side and having in mind the concrete platform, as well, state whether or not the concrete platform is narrower than the doorway which leads into it. A. It is.

‘Q. How much narrower? A. Four inches. * * *

‘Q. Having this doorstop in mind, how much shorter is the concrete platform than the doorway-how much narrower is the concrete platform than the doorway? A. East and west?

‘Q. On the westerly side of the concrete platform? * * * A. The difference between the width of the platform and the door is 4 inches; in other words, the door overlaps the first riser by 4 inches.’

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:

‘Q. * * * Now, when you turned the light (in the rear room) on, just before you got to the door leading to the stairway, you could see the steps, couldn't you? A. I turned the lights on, yes, and you could see the platform but you could not see the (stairway) steps.

‘Q. From the private dining (rear) room? A. Indeed not.

‘Q. When you got to the door, when the door was open? A. You can't see the steps when you open the door.’

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

[2 N.W.2d 916]

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:

‘Q. Will you explain to the jury just how you had this accident? A. I stepped over the threshold; I saw the platform and I put my foot down and I felt just the front part of my foot on the edge of the platform-the back part was over space, my heel, and I lost my balance and went down the steps backwards. * * *

‘Q. Now, why were you going-why did you have occasion to use this particular passageway at the time-what were you goint to do? A. I was going to go out for a little while to get a breath of fresh air.

‘Q. What was the condition of the atmosphere in this rear inner room? A. It was very stuffy and I was very warm. * * *

‘Q. Do you recall seeing other people going outside through the rear exit that evening? A. Yes. * * *

‘Q. The night of the accident were you familiar with these premises? A. No, I wasn't.

‘Q....

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61 practice notes
  • Hoffner v. Lanctoe, Docket No. 142267.
    • United States
    • Supreme Court of Michigan
    • July 31, 2012
    ...rest on the person in control of the property because he or she is in the best position to prevent the injury. Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912 (1942). The open-and-obvious doctrine, however, balances the invitor's duty to diminish the hazard of injury with the need for ......
  • Buhalis v. Trinity Continuing Care Servs., Docket Nos. 296535
    • United States
    • Court of Appeal of Michigan (US)
    • May 29, 2012
    ...she used the patio. Nevertheless, as our [296 Mich.App. 703]Supreme Court explained approximately 80 years ago in Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912 (1942), a visitor's status is a matter for the jury if there is evidence from which it could find that the visitor reasonably un......
  • Finazzo v. Fire Equip. Co., No. 338421
    • United States
    • Court of Appeal of Michigan (US)
    • April 17, 2018
    ...(emphasis added). In Kubczak , 456 Mich. at 662, 575 N.W.2d 745, the Court expounded on this principle by quoting Nezworski v. Mazanec , 301 Mich. 43, 56, 2 N.W.2d 912 (1942) :"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power t......
  • Riddle v. McLouth Steel Products Corp., Docket No. 89273
    • United States
    • Supreme Court of Michigan
    • November 1, 1991
    ...rest upon the one who is in control or possession of the premises and, thus, is best able to prevent the injury. See Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912 (1942); Smith v. Peninsular Car Works, 60 Mich. 501, 504, 27 N.W. 662 (1886). This Court has "Every man who expressly or ......
  • Request a trial to view additional results
61 cases
  • Hoffner v. Lanctoe, Docket No. 142267.
    • United States
    • Supreme Court of Michigan
    • July 31, 2012
    ...rest on the person in control of the property because he or she is in the best position to prevent the injury. Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912 (1942). The open-and-obvious doctrine, however, balances the invitor's duty to diminish the hazard of injury with the need for ......
  • Buhalis v. Trinity Continuing Care Servs., Docket Nos. 296535
    • United States
    • Court of Appeal of Michigan (US)
    • May 29, 2012
    ...she used the patio. Nevertheless, as our [296 Mich.App. 703]Supreme Court explained approximately 80 years ago in Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912 (1942), a visitor's status is a matter for the jury if there is evidence from which it could find that the visitor reasonably un......
  • Finazzo v. Fire Equip. Co., No. 338421
    • United States
    • Court of Appeal of Michigan (US)
    • April 17, 2018
    ...(emphasis added). In Kubczak , 456 Mich. at 662, 575 N.W.2d 745, the Court expounded on this principle by quoting Nezworski v. Mazanec , 301 Mich. 43, 56, 2 N.W.2d 912 (1942) :"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power t......
  • Riddle v. McLouth Steel Products Corp., Docket No. 89273
    • United States
    • Supreme Court of Michigan
    • November 1, 1991
    ...rest upon the one who is in control or possession of the premises and, thus, is best able to prevent the injury. See Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912 (1942); Smith v. Peninsular Car Works, 60 Mich. 501, 504, 27 N.W. 662 (1886). This Court has "Every man who expressly or ......
  • Request a trial to view additional results

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