Rice v. Goodspeed Real Estate Co.

• Decision Date: 07 April 1931
• Docket Number: No. 60.,60.
• Parties: RICE v. GOODSPEED REAL ESTATE CO.
• Court: Michigan Supreme Court

254 Mich. 49

235 N.W. 814

RICE

v.GOODSPEED REAL ESTATE CO.

No. 60.

Supreme Court of Michigan.

April 7, 1931.

Error to Circuit Court, Kent County; William B. Brown, Judge.

Action by Clarence F. Rice against the Goodspeed Real Estate Company. To review a judgment for the plaintiff, defendant brings error.

Judgment for the plaintiff set aside, and judgment directed to be entered for the defendant.

Argued before the Entire Bench.Payne & Payne, of Detroit (Ward & Strawhecker and Dunham, Cholette & Allaben, all of Grand Rapids, of counsel), for appellant.

Linsey, Shivel & Phelps, of Grand Rapids, for appellee.

NORTH, J.

In February, 1929, plaintiff rented for use as an office and salesroom certain space on the fifth floor of a business block owned by defendant in Grand Rapids. Plaintiff's business was such that he had occasion at times to go to his office during evening hours. The regular elevator service provided by defendant was from 8 a. m. to 6 p. m. only. Certain of the tenants in the building were provided with keys to the elevator and were permitted to use it after 6 o'clock. At such times the elevator was operated by the tenants or by their employees. From the early spring of 1929, until the date of this accident, August 2, 1929, plaintiff from time to time had so operated the elevator for his own convenience. About 9 o'clock in the evening of the accident plaintiff entered the building and approached the elevator opening on the first floor intending to use the elevator to go to his office. The entryway and vestibule were unlighted and plaintiff fell through the door to the elevator shaft into the elevator pit fourteen feet below. He was seriously injured. He brought this suit against the landlord to recover damages for his injuries, alleging that the defendant was negligent in failing to light the vestibule at the entrance to the elevator and also in permitting the door to the elevator shaft to be left open when the elevator cage was not at that level. Decision of defendant's motion for a directed verdict was reserved. After verdict for plaintiff, defendant's motion for judgment non obstante and its motion for a new trial were denied. On review by writ of error defendant presents numerous assignments, one of which is that defendant should have had judgment on the ground that plaintiff was guilty of contributory negligence as a matter of law.

In reviewing this phase of the case it will be assumed that there was proof of defendant's negligence, and plaintiff's version of the contested facts will be accepted as settled by the verdict of the jury. In addition to the facts above stated, we must accept plaintiff's contention that, like some other tenants in the building, he was permitted by defendant to use this elevator after the regular hours and was furnished a key for that purpose; that on other occasions when he had gone to the building during the evening hours he had always found the vestibule lighted, but on this occasion there was no light in the hallway which was about twelve feet long and led to the vestibule nor in the vestibule itself; that plaintiff did not know where or how the electric light was turned on; and that he had never before found the door to the elevator shaft open or unlocked when the elevator cage was not at that floor. Also that on this occasion, in accordance with his usual custom, as plaintiff approached the elevator opening he was leaning over and looking through a transom and up the elevator shaft, which was about three feet to his left as he entered the vestibule, for the purpose of discovering where the elevator cage was located and that this could ordinarily be done by reason of the electric light in the cage. While attempting to make this observation, and not knowing that the door to the elevator shaft was open, plaintiff stepped beyond the threshhold of the elevator entrance and fell to the bottom of the shaft. Plaintiff's lease provided:

‘Party of the first part (the defendant) agrees to furnish heat and elevator service in the ordinary manner as furnished in the regular process of operating the building in common with other tenants. It is also agreed by parties of the second part (plaintiff) that any damages or loss to them caused by fire, water, broken pipes and loss or damages of any other name or nature will be assumed by themselves, and party of the first part will not be held responsible.’

As bearing upon the question of his own negligence plaintiff's testimony contains the following:

‘Q. Did you try the elevator door? A. No, sir, I stooped over to look up the transom.

‘Q. You did not try to look for the elevator door? A. No, sir, I did not look for the elevator door; I looked for the elevator. * * *

‘Q. You knew there was a door there? A. Yes, sir.

‘Q. You had operated that elevator before? A. Yes, sir. * * *

‘Q. So you knew when you were stopped (stooped) over there to look up the elevator shaft, there was no light there so you could see the door and entrance to the elevator? A. Yes, sir.

‘Q. Did you try for the door? A. No, sir.

‘Q. Didn't you put your hand out to try to see if the door was there in the darkness? A. No, sir.

‘Q. Didn't you realize there must be something wrong when it was dark? A. No, sir.

‘Q. You never gave that a thought? A. No, sir.

‘Q. You just walked into this dark hallway and walked over to the elevator, never tried to see if the door was there, and then attempted to look up the shaft and fell down into the elevator shaft? A. Yes, sir.

‘Q. Is that true witness? A. That is true that I stooped over to look up for the elevator and fell down the shaft, yes, sir. * * *

‘Q. You walked over toward the elevator door? A. Yes, sir.

‘Q. You did that because you knew the position and location of the elevator door, didn't you? A. Yes, sir.

‘Q. And without trying to find out if the elevator door was in place, you walked in deliberately, looked up and fell down the shaft? A. Yes, and you can look up without going through over to the door.

‘Q. And you didn't try to find the door by feeling with your hand, did you? A. No, sir.’

Plaintiff knew the location of this elevator shaft. He knew if one walked into it injury would probably follow. If he had walked into the open shaft while the entryway or vestibule was lighted, there could have been no doubt of his negligence in so doing. Instead, as he approached the shaft he found for the first time the premises were in darkness; and obviously it then became his duty to exercise a greater degree of care. His own testimony discloses that he wholly failed to do so and his misfortune resulted. There is no complaint made that this elevator was not properly installed, in proper repair, or that the doors to the shaft were not properly equipped with locks. Because of his having so used the elevator, plaintiff knew that after 6 p. m. this equipment was operated by others than defendant or its employees. He was bound to know that those using it after the regular operating hours were charged with exercising such care as was necessary for their own safety. In the darkness and knowing the location of the elevator (as stated in his declaration), ‘plaintiff stepped off and into the elevator shaft.’ Whether plaintiff was negligent in so doing must be tested in the light of the surrounding circumstances. The lease did not require defendant to light its hallway. There was no common-law duty to do so. Lindsley v. Stern, 203 App. Div. 615, 197 N. Y. S. 106; nor are we advised of any such statutory requirement. See Gleich v. Detroit Free Press, 169 Mich. 247, 135 N. W. 306. In his approach to the vestibule and the elevator shaft at a time when plaintiff expected to operate the elevator for his own use, he was obligated to exercise a reasonable degree of care to save himself from injury. We think it conclusively appears from this record that his failure to do so was the proximate cause of his injury.

This is not a case wherein at the time of the accident the elevator either actually or...