Shorkey v. Great Atlantic & Pac. Tea Co.

• Decision Date: 23 June 1932
• Docket Number: No. 145.,145.
• Citation: 259 Mich. 450,243 N.W. 257
• Court: Michigan Supreme Court
• Parties: SHORKEY v. GREAT ATLANTIC & PACIFIC TEA CO.

259 Mich. 450

243 N.W. 257

SHORKEY

v.GREAT ATLANTIC & PACIFIC TEA CO.

No. 145.

Supreme Court of Michigan.

June 23, 1932.

Appeal from Circuit Court, Bay County; Samuel G. Houghton, Judge.

Action by Margaret Shorkey against the Great Atlantic & Pacific Tea Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Argued before the Entire Bench. Clark & Henry, of Bay City (Charles R. Fox, of Detroit, of counsel), for appellant.

Collins & Thompson, of Bay City, for appellee.

FEAD, J.

Plaintiff, while a customer in defendant's store and following the manager to the rear of the store to be shown some goods, stepped on a hot air register located near a counter about the center of the store. The heel of her shoe went through a hole in the register, and she was thrown and injured. She had verdict of a jury and judgment for damages. Defendant asks judgment non obstante for lack of negligence on the part of defendant, and for contributory negligence of plaintiff.

Plaintiff's heels were high and about three-quarter inch by one inch across the bottom. She had worn similar shoes for nine years, and they were in common use by a great many women. She had been in defendant's store nearly every day for a year, and knew the location of the register. The meshes in the hot air register were about one inch square, some variations occurring in manufacturing, and, on experiment, it was found that the heels of plaintiff's shoes would go through several but not all of the openings.

The register was of standard construction, so recognized in the heating trade, and of size and character commonly used in floors of stores and buildings frequented by the public. Defendant was lessee of the store, had maintained it four years, had served 1,800 or more customers per week, most of whom were women and most of whom had walked on the register, and there had been no prior accident. It was not shown there had been any accident anywhere on similar registers.

Counsel agree upon the rule that a storekeeper is not an insurer of safety of his customers, but that it is his duty to use reasonable care to provide a reasonably safe place for them on his premises.

The cases on the rule have been annotated exhaustively in 58 A. L. R. 136; 46 A. L. R. 1111; 43 A. L. R. 868; 33 A. L. R. 181; L. R. A. 1915F, 572; 21 L. R. A. (N. S.) 456, and seemingly cover nearly every conceivable state of facts except the one before us.

The register was not out of repair nor in an unusual condition; so the question of defendant's negligence depends upon whether the register was so constructed and placed that a reasonably careful person would have anticipated that injury to customers would be liable to result from its use in the floor.

The fact that the register was of standard construction, of a kind in common use in public places, while not an absolute defense, Hill Grocery Co. v. Hameker, 18 Ala. App. 84, 89 So. 850, is evidence that an ordinarily prudent person would not have deemed it dangerous. Steggall v. W. T. Knapp & Co. 241 Mich. 260, 217 N. W. 16; ...