Pentz v. Wetsman

• Decision Date: 10 December 1934
• Docket Number: No. 90,Oct. Term, 1934.,90
• Parties: PENTZ v. WETSMAN et al.
• Court: Michigan Supreme Court

269 Mich. 496

257 N.W. 735

PENTZ

v.WETSMAN et al.

No. 90, Oct. Term, 1934.

Supreme Court of Michigan.

Dec. 10, 1934.

Action by Ernest W. Pentz, administrator of the estate of Julius W. Pentz, deceased, against Barney B. Wetsman, Henry S. Koppin Company, and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Argued before the Entire Bench.

John Hal Engel, of Detroit, for appellant.

Schueler & Freud, of Detroit, for appellee Barney B. Wetsman.

Bishop & Weaver, of Detroit, for appellee Dearborn-Detroit Development Co.

Vandeveer & Vandeveer, of Detroit, for appellees Henry S. Koppin Co. and Woodward Theatre Co.

EDWARD M. SHARPE, Justice.

Plaintiff's decedent, a man 57 years of age, had for a number of years engaged in the advertising business. In August, 1926, he entered into an agreement with the Woodward Theatre Company to install in the Calvin Theatre at Dearborn an advertising curtain.

On January 11, 1927, while the theater was being completed and prepared for its opening, the owner and contractor had several men at work completing the building, such as installing seats, pipe organ, and a door for a trap opening in the stage of the theater. The opening was 4 feet by 5 1/2 feet and was to be used in lowering or raising luggage or other equipment from the stage of the theater to the basement of the building; and for some time prior to the day of the accident, it had been barricaded. Plaintiff's decedent arrived at the theater on the morning of January 11, 1927, and brought the curtain in upon the stage and started to unfold or unroll it. The curtain was 28 by 35 feet and, following the custom in such cases, plaintiff's decedent walked backward in the process of unrolling the curtain. The stage of the theater was lighted about the consistency of the working lights on the stage when the performance is not on and light enough so men could work around there. The opening in the floor was apparent and obvious to others there employed. It is conceded that plaintiff's decedent, while unrolling the curtain in the manner hereinbefore described, fell through the opening and landed on the cement floor in the basement and, as a result of this fall, death followed in about two hours.

Plaintiff brought suit, and the trial judge directed a verdict of no cause of action on the theory that plaintiff's decedent was guilty of contributory negligence in walking backwards in the manner hereinbefore described without first assuring himself that it was safe to do so.

Plaintiff contends that there being no eyewitnesses to the accident which resulted in the death of plaintiff's decedent, therefore plaintiff is entitled to the presumption that the deceased was in the exercise of due care at the time of the accident. We think the correct rulling as related to the presumption was established in Fenn v. Mills, 243 Mich. 634, 220 N. W. 770, 771, wherein the court said: ‘The presumption that a decedent was in the exercise of due care does not obtain where there are creditable eyewitnesses to the occurrence. Nor is it a conclusive presumption. It may be rebutted by direct or circumstantial evidence, and circumstances themselves may be sufficient to raise an issue of fact for the jury or to demonstrate the existence of contributory negligence as a matter of law. Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N. W. 536.’

‘The presumption indulged in favor of the plaintiff that he was free from negligence contributing to his injuries sued for will be overcome by specific averments of facts which show that he knew, or had opportunity to know, of the danger, and, knowing of the danger, did not use care commensurate therewith.’ Lafayette v. Fitch, 32 Ind. App. 134, 69 N. E. 414.

Plaintiff relies upon the cases of McCrum v....