Brown v. Stevens

136 Mich. 311 | Mich. | 1904

Grant, J.

(after stating the facts). 1. This case in all its essential features is ruled by McCrum v. Weil & Co., 125 Mich. 297 (84 N. W. 282). See, also, Felton v. Schmidt, 104 Mich. 349 (62 N. W. 552, 53 Am. St. Rep. 462); Neff v. Inhabitants of Wellesley, 148 Mass. 487 (20 N. E. 111, 2 L. R. A. 500); Smith v. Wildes, 143 Mass. 556 (10 N. E. 446); Hendricken v. Meadows, 154 Mass. 601 (28 N. E. 1054).

2. The plaintiff was not guilty of contributory negligence unless he was warned of the danger. Unless he received such warning, he was justified in believing that the floor was in safe condition for him to walk over, and he could not be held guilty of contributory negligence, even though he might have seen the opening had he looked. When merchants invite their cutomers to walk over their floors in front of their counters for the purpose of examining their goods and making purchases, such customers have a right to rely upon the safety of the floor. (See authorities above cited.) The fact that others were standing around would be no notice of danger. On the other hand, their presence might partly have concealed the opening, and furnished an additional reason for believing that no open-ing was there, even if he had been informed that there was an opening somewhere.

3. The defendants requested the court to submit the following special question:

“Did the defendant Egbert G. Stevens notify the plaintiff, Christian Brown, when in the defendants’ store before he fell, to look out, for the trapdoor was open, or use-words to that effect to him ?”

The question as submitted read thus:

“ Did the defendant Egbert G. Stevens notify the plaintiff, Christian Brown, when in the defendants’ store before he fell, in a manner that he ought to have heard it, to look out, for the trapdoor was open, or use words.of' that effect to him ?”

It is urged that there was no evidence tending to show that defendant Egbert G. Stevens knew that plaintiff was. deaf, and that therefore defendants had performed their full duty by saying to him in an ordinary tone of voice that the trapdoor was open, and to look out. We do not. think that defendants performed their full duty to plaintiff, if they knew His eyesight was very defective, by simply notifying him to look out for the trapdoor. Plaintiff was in the store upon their invitation. He had been invited to go to the back end. He was a stranger there. They did not inform him where the trapdoor was. Naturally, he would not presume it to be where he, with his defective eyesight, saw people standing. Neither would he presume it to be in the middle of the floor space provided for the use of customers. According to their own testimony, his appearance was like thát of one intoxicated, and not that of one in the possession of ordinary faculties. Under the circumstances, it was their duty to do something more than to tell him in an ordinary tone of voice to look out for the trapdoor. Every one, whether his eyesight is good or bad, has the right to assume that the floor of a store, where he can see persons standing around, is perfectly safe.

We have examined the testimony upon the question of damages, and the allegations of error in connection therewith. We find no error in them, and do not consider them of sufficient importance to the profession to discuss. Judgment affirmed.

The other Justices concurred.