Sullivan v. Detroit & Windsor Ferry Co.

• Decision Date: 05 October 1931
• Docket Number: No. 149.,149.
• Citation: 238 N.W. 221,255 Mich. 575
• Court: Michigan Supreme Court
• Parties: SULLIVAN v. DETROIT & WINDSOR FERRY CO.

255 Mich. 575

238 N.W. 221

SULLIVAN

v.DETROIT & WINDSOR FERRY CO.

No. 149.

Supreme Court of Michigan.

Oct. 5, 1931.

Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.

Action by Gerald Sullivan against the Detroit & Windsor Febrry Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.

Vandeveer & Vandeveer, of Detroit, for appellant.

George Murphy, of Detroit, for appellee.

POTTER, J.

Plaintiff sued defendant to recover damages claimed to have resulted to him from defendant's negligence. From a judgment for plaintiff, defendant appeals. Plaintiff, a patron of a place of public resort operated by defendant, had his arm injured by a nail projecting on the outside of a side rail of a slide. Plaintiff was riding down the slide on his back, head first, and threw his arm around this outside rail while in motion and his arm was injured by the projecting nail. Defendant contends there is no proof of defendant's negligence, there was error in admitting testimony over defendant's objection, and plaintiff was guilty of contributory negligence.

The action is based upon defendant's negligence. The applicable rule is thus stated in 1 Thompson on Negligence, par. 996, as follows: ‘The duty assumed by the owners of places to which the public thus resort in large numbers is manifestly analogous to that which the law imposes upon carriers of passengers. Nevertheless it has been measured by the standard of ordinary care. Doubtless the true theory is that such persons assume the obligation of exercising reasonable care, and that what will be reasonable care will be a degree of care proportioned to the danger incurred, and to the number of persons who will be subjected to that danger. A good expression of the rule of liability, applicable in such cases, is found in an English case to the effect that the proprietor of such a structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable,-not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial.’

This is the rule in this state. In Scott v. University of Michigan Athletic Ass'n, 152 Mich. 684, 116 N. W. 624, 625,17 L. R. A. 234, 125 Am. St. Rep. 423,15 Ann. Cas. 515, it is said: ‘Plaintiff was not a mere licensee, and did not occupy the stand by mere invitation. Whether responsibility to the plaintiff is grounded, in the form of action instituted, upon a contract or upon a duty, it exists, if at all, because of an implied contract. The implied contract was that the stand was reasonably fit and proper for the use to which it was put. The duty was to see to it that it was in a fit and proper condition for such use. Neither plaintiff nor the public generally would be expected to examine the stand and judge of its safety. This consideration, and the probable consequences of failure of the structure, imposed upon the responsible and profiting persons the duty of exercising a high degree of care to prevent disaster. They were not insurers of safety. They did not contract that there were no unknown defects not discoverable by the use of reasonable means, but, having constructed the stand, they did contract that except for such defects it was safe. 1 Thomp. Neg. §§ 994-997; 21 Am. & Eng. Ency. Law [2d Ed.] 472; Francis v. Cockrell, 5 L. R. Q. B. 184; s. c., 39 L. J. Rep. (N. S.) Q. B. 113, 39 L. J. Rep. (N. W.) C. L. 291. See, also, Fox v. Buffalo Park, 21 App. Div. 321, 47 N. Y. S. 788;Id., 163 N. Y. 559, 57 N. E. 1109.’

It is contended the court was in error in admitting testimony tending to show injuries to other persons using the slide prior to the injury to plaintiff. Evidence of prior accidents has always been admissible to show defendant's notice or knowledge of the defective or dangerous condition alleged to have caused the accident, Smith v. Township of Sherwood, 62 Mich. 159, 28 N. W. 806;Moore v. Township of Kenockee, 75 Mich. 332, 42 N. W. 944,4 L. R. A. 555;Campbell v. City of Kalamazoo, 80 Mich. 655, 45 N. W. 652;McGrail v. City of Kalamazoo, 94 Mich. 52, 53 N. W. 955;Corporan v. City of Detroit, 95 Mich....