Thurkow v. City of Detroit

Citation292 Mich. 617,291 N.W. 29
Decision Date15 March 1940
Docket NumberNo. 35.,35.
PartiesTHURKOW v. CITY OF DETROIT.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Action by Henry Thurkow against the City of Detroit for damages for personal injuries sustained when struck by defendant's bus. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Appeal from Circuit Court, Wayne County; James E. Chenot, judge.

Argued before the Entire Bench.

Gerald E. Schroeder, of Detroit for appellant.

Rodney Baxter, James S. Shields, and William J. McBrearty, all of Detroit, for appellee.

POTTER, Justice.

Plaintiff is a man 72 years of age. He was slightly deaf in his left ear, his left eye was missing, and for four or five days immediately preceding the accident in question his left ankle had been infected. December 3, 1938, he boarded a Woodward avenue streetcar owned by defendant and rode south to the northwest corner of Woodward and Manchester avenues. There he secured a transfer to the Oakman car, also owned by defendant, and stepped off the car. On the northwest corner of Woodward and Manchester is the Briggs building. A public sidewalk runs west on Manchester avenue along the south side of the Briggs building to a point eight feet west of the building. A public sidewalk eight feet in width also extends north along the west side of the Briggs building. Adjacent to and parallel with the sidewalk which runs north is a driveway 24 feet 6 inches wide. The property on the west side of this driveway is owned by defendant which has erected thereon a bus and streetcar terminal and turn-around. Plaintiff's destination was defendant's passenger platform located on the north side of Manchester avenue directly across the driveway. After leaving the Woodward avenue streetcar, plaintiff walked west along the sidewalk in front of the Briggs building to the eight-foot sidewalk on the west side of this building; than north four or five steps; then directly west across the drive. After he had traveled 20 feet across this 24-foot driveway, he was struck by one of defendant's busses. The bus had come west along Manchester avenue and had made a righthand turn to go north upon the driveway. Plaintiff made an observation to the right and left after he reached a point where he intended to cross the driveway. There were no vehicles approaching from either direction. Although it was 5:45 P.M. and there was a light drizzly rain, the location was well lighted by flood and store lights. At the conclusion of plaintiff's case, defendant moved for a directed verdict of no cause of action. Plaintiff then asked permission to reopen the case to present proof that the driveway was owned by defendant. This request was denied, but the court assumed for the purpose of the motion that the drive was privately owned and that plaintiff was an invitee at the time he was injured. The court then granted the motion and dictated an opinion in which it found no proof of negligence on defendant's part and found plaintiff guilty of contributory negligence. These findings are the substantial errors upon which plaintiff relies.

Plaintiff was not struck upon a city street but upon the private driveway of the defendant. Plaintiff was a guest of defendant, entering upon its property to make use of the facilities which it as a common carrier made available to the public.

A carrier must exercise ordinary and reasonable care towards passengers using its stations and approaches. Anda v. Chicago, etc., Transit Co., 231 Mich. 567, 204 N.W. 761; Hutchinson, Carriers (3d Ed.) § 937. Ordinary case is commensurate with, and in proportion to, the extent that the carrier should have reasonably anticipated or known of hazards and dangers towards invitees entering upon its premises. Anda v. Chicago, etc., Transit Co., supra; Kelly v. Manhattan R. Co., 112 N.Y. 443, 20 N.E. 383,3 L.R.A. 74. We cannot say plaintiff failed to establish a prima facie case. The happening of the accident alone is no evidence of negligence. Elsey v. J. L. Hudson Co., 189 Mich. 135, 155 N.W. 377, L.R.A.1916B, 1284;A. J. Brown & Son v. City of Grand Rapids, 265 Mich. 465, 251 N.W. 561. But if the attendant circumstances are sufficient to take the case out of the realm of conjecture and within legitimate inferences from established facts, a prima facie case is established. Burghardt v. Detroit United Railway, 206 Mich. 545, 173 N.W. 360, 5 A.L.R. 1333; O'Donnell v. Lange, 162 Mich. 654, 127 N.W. 691, Ann.Cas.1912A, 847;Macres v. Coca-Cola Bottling Co., 290 Mich. 567, 287 N.W. 922.

‘It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. * * * But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured party a right of action, where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other.’ Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081, 1083.

See, also, ‘Negligence-Presumptive Rule of Negligence as Applied in Michigan,’ 18 Michigan State Bar Journal, p. 36. The fact that plaintiff was but 4 1/2 feet from the left edge of the driveway when he was struck, that the corner was well lighted, that defendant should reasonably have known that wide turns by its buses constituted a danger to invitees, and that one must, on peril of legal negligence, so drive that he can and will discover an object, perform the manual acts necessary to stop, and bring the car to a complete halt within such range (Ruth v....

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7 cases
  • Patterson v. Pennsylvania Railroad Company
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 5, 1956
    ...must be resolved in the plaintiff's favor. Brunswick-Balke-Collender Co. v. Foster Boat Co., 6 Cir., 141 F.2d 882; Thurkow v. City of Detroit, 292 Mich. 617, 291 N.W. 29. We shall undertake to state succinctly the material facts. Appellant's decedent was in the employ of the City of Detroit......
  • Ford Motor Co. v. Bradley Transp. Co.
    • United States
    • U.S. District Court — Western District of Michigan
    • October 24, 1947
    ...the doctrine of res ipsa loquitur does not prevail in Michigan, Detroit Edison Co. v. Knowles, 7 Cir., 152 F.2d 422; Thurkow v. City of Detroit, 292 Mich. 617, 291 N.W. 29, by the great weight of authority this court may arrive at its own conclusion on the facts and circumstances as they th......
  • Ford Motor Co. v. Bradley Transp. Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 11, 1949
    ...it toppled over. While under Michigan law, applicable here, the doctrine of res ipsa loquitur does not prevail, Thurkow v. City of Detroit, 292 Mich. 617, 621, 291 N.W. 29, the Michigan courts have held that the rule should not be extended so as to deny a right of action where there is room......
  • McDuffie v. Root
    • United States
    • Michigan Supreme Court
    • January 5, 1942
    ...be drawn from established facts must be viewed most favorably to plaintiff. Hale v. Cole, 241 Mich. 624, 217 N.W. 898;Thurkow v. City of Detroit, 292 Mich. 617, 291 N.W. 29. Under this view, defendant while attempting to pass a car ahead of her drove into plaintiff's traffic lane, caused pl......
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