Normand v. Thomas Theatre Corp.

• Decision Date: 31 July 1957
• Docket Number: No. 4,4
• Citation: 349 Mich. 50,84 N.W.2d 451
• Parties: Irene NORMAND, Plaintiff and Appellee, v. THOMAS THEATRE CORPORATION, a Michigan Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 451

84 N.W.2d 451

349 Mich. 50

Irene NORMAND, Plaintiff and Appellee, v. THOMAS THEATRE CORPORATION, a Michigan Corporation,

Defendant and Appellant.

No. 4.

Supreme Court of Michigan.

July 31, 1957.

Donnelly & O'Brien, Houghton, for appellant.

Messner & LaBine, Houghton, for appellee.

Before the Entire Bench.

BLACK, Justice.

The defendant's theater in Calumet opens from the street directly into the 'theater lobby.' The lobby is a little over 32 feet in length and parallels the street. As the patron enters he finds the ticket office to his left, at end of the lobby, and the restroom entryways to his right, at the other end. The theater proper is straight ahead.

About 5:50 in the afternoon of February 24, 1955, plaintiff and the presently identified members of her family left nearby Lake Linden for Calumet, intending to see the movie show scheduled that evening--starting at 6:30--by defendant. The party consisted of plaintiff, her husband, plaintiff's mother and stepfather, and plaintiff's daughter. They arrived at the theater shortly after six o'clock and, noting that the theater lights and not yet been turned on, waited in their parked automobile until the theater manager and the ticket clerk arrived. As soon as the latter arrived and turned on the theater lights, plaintiff's party left the parked car and entered the lobby. The stepfather (aged 67), described in the record as having 'high blood pressure and heart trouble and he is awfully excitable and nervous', needed personal relief. Upon entry the old gentleman inquired of plaintiff for guidance to the men's room and, being shown the doorway to the right with designation 'gentlemen' above the casing, proceeded to enter it.

We turn now to construction details of the doorway and entry. As one faces the door, it is hinged at the left and opens inward to the left. The opening are is limited to 90 degrees. Just inside the doorway and at level with the lobby floor is a platform measuring 4 feet and 2 inches (this measurement is straight in from the doorway) by 5 feet (measured parallel to the closed door). A stairway descends straight ahead, from the doorway and platform. It leads to the basement of the building where the rest facilities are located. The stairway consists of 10 inch steps with 7 inch risers, and it extends far enough to complete a vertical descent of 8 feet (from platform level to basement level). The stairway and platform are supported at the right by a partition leading from the right side of the door casing and at right angles thereto. This partition extends to and beyond the end of the stairs. A hand rail extends along the partition, from top to bottom of the stairway. Just inside the mentioned doorway and at proper height, an electric switch--set in the partition wall--provides means of lighting the stairway and platform. Such lighting equipment was in proper working order but had not yet been turned on when the stepfather sought to use the mentioned facilities.

The stepfather, having stepped inside to the platform and finding it completely dark inside the doorway, called to plaintiff for aid in finding the light switch. Her husband at the time was at the other end of the lobby, waiting at the ticket office for the latter to open. Plaintiff stepped through the doorway and attempted to find the switch by feeling along the partition wall. At that time her stepfather had his back to the partition wall near the doorway, and it is apparent that he was thus unwittingly concealing from plaintiff the switch she was looking for. Plaintiff took two steps forward, feeling meanwhile for the switch, and thereupon stepped over the first step of the stairway. She fell to the basement and received personal injuries for which this action was brought against defendant.

Suit having been instituted in the Houghton circuit, the case was tried to court and jury, Honorable Leo J. Brennan, circuit judge presiding, and resulted in a verdict and judgment for plaintiff in the sum of $10,000. Defendant reviews and insists that its motion for directed verdict, counting on contributory negligence, and its reserved motion for judgment notwithstanding verdict, should have been granted. It contends further that the verdict was excessive in amount.

Defendant's negligence was conceded at close of proofs. The concession is shown this way in the separately certified transcript:

'The Court: Let the record show at this time at the close of the arguments and before the Court instructs the jury, that counsel for the defendant has admitted negligence on the part of the defendant because of its failure to have a light on in the room leading to the men's toilet when the front door of the theater was unlocked and when patrons were on the premises. Is that a correct statement of the situation?

'Mr. Donnelly: (defendant's counsel) Yes, your Honor.

'The Court: Mr. Messner, you understand that?

'Mr. Messner: (plaintiff's counsel) That is my understanding, yes.'

First: Was Plaintiff Guilty Of Contributory Negligence?

In 1896, following then recent lead of the Supreme Court, the court of appeals of the 8th circuit prepared a helpful brief addressed to this question. ¹ The occasion was a suit for negligence, brought by a Northern Pacific railroad passenger. At near midnight--it was New Year's eve--the plaintiff went forward from the rearmost pullman (where plaintiff and wife were berthed) to seek out the conductor for information regarding a proposed stop-over. The passageway of each pullman--at each end--consisted of right angle reverse turns leading to enclosed vestibules. At the time in question, an outer door 'opening upon the steps' of one of the vestibules had been left open. This vestibule was unlighted at the time, although dimmed lamps within each car shed some but not much light therein. The plaintiff, having gone forward and having completed his business with the conductor, returned to the vestible just described and, mistaking the vestibule platform for the passageway turning left and then right in the car to be entered, turned left in the vestibule and fell from the rapidly moving train. The train was proceeding on a trestle over Lake Pend d'Oreille in an uninhabited region of northern Idaho, and plaintiff was precipitated into the icy waters below as the train proceeded westward toward the coast (Yes, he did survive).

Was he guilty of contributory negligence? The court answered in the negative with this preface, the conception of which took place in Michigan (pages 739-400 of 76 F.):

'In Jones v. [East Tennessee, V. & G.] Railroad Co., 128 U.S. 443, 445, 9 S.Ct. 118 , the lower court instructed the jury to render a verdict for the defendant upon the ground that the plaintiff had been guilty of contributory negligence, but the supreme court reversed the judgment, saying:

"But we think these questions [of negligence] are for the jury to determine. We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.'

'It does not follow, however, that because it is the exclusive province of the jury to determine the question of negligence, that in no state of facts can the court withdraw the case from the consideration of the jury. Although the rule as to when the case is one for the jury and not for the court has been variously stated, the various statements have the same meaning. The rule is frequently laid down in these terms: That when the evidence in any given case is conflicting, or the facts disputed, or where the facts are of such a character that different minds might draw different conclusions from them, the case must be left to the jury for their determination. Another statement of the rule is that a case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Probably the most satisfactory statement of the rule, and the one easiest to comprehend and apply (Scott v. City of New Orleans, 5 Cir., 75 F. 373, 377), is that given by the supreme court in [Grand Trunk] Railroad Co. [of Canada] v. Ives, 144 U.S. 408, 417, 12 S.Ct. 683 , where it is thus stated:

"When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the courts.'

'And in such cases the court merely declares the evidence is insufficient in law because insufficient in fact. When, therefore, it is said that a given act does or does not constitute negligence in law, the statement means no more than that in the judgment of all reasonable men--not judges alone, for it concerns a fact, and not a question of law--it would be esteemed such. When it can be affirmed that all reasonable men would agree as to the quality of an act in respect of its being either negligent or prudent, the court may give effect to such concensus of opinion, and direct a verdict in accordance therewith. The direction is given, not because it is the judge's opinion alone, but because the judge is able to say that it is also the opinion that all reasonable men would entertain of the question. If there is doubt as to whether all reasonable men would draw the same conclusion from the evidence, then the question must be submitted to the 12 reasonable men appointed by the constitution to determine disputed or doubtful questions of fact. The rule on the subject is well stated and illustrated by Judge Cooley in delivering the opinion of the court in [Detroit & M.] Railway Co. v. Van Steinburg, 17 Mich. 99, 118. The learned judge said: (Here...