82 Mich. 1 | Mich. | 1890
This suit was commenced by declaration to recover for injuries received by plaintiff by his falling through a trap-door in the store of defendants on January 26, 1888.
The building of defendants had, prior to their entry therein, been occupied by one Morehouse as a hardware store. Plaintiff had been employed by Morehouse as a tinsmith. The shop in which he worked was on the second floor. Plaintiff's only means of access to the shop in which he worked for Morehouse was by way of the front door of the store, and up inside stairs; at that time there being no stairs to the rear door of the store. The store fronted west on Main street, and along the south side of it ran Lafayette street. Some months before the accident the defendants came into possession of the store, and plaintiff was permitted to continue his business in the shop he had worked in for Morehouse. Some time after the defendants took possession, the post-office was moved into the store. Up to this time the back door of the store was only used to receive goods in, and not as a way to the store. The testimony tends to show that, after the stairs were put up at the back door of the store, leading from the ground to a platform, most of the people coming to the store from the east entered it by the back door. The stairs and platform were narrow, and without rail.
The trap-door or hatchway through which plaintiff fell was in front of the back door, and from a foot to a foot and a half distant from it. It had been there from the erection of the building, and was used as a way through which to hoist heavy goods from the cellar to the store floor, and' through a trap-door overhead to the second floor. Plaintiff, after the back stairs had been put up,
On the morning of the accident the store was opened by Wilber Smith, a son of one of the defendants. The plaintiff entered with him, went up to his shop, built his fire, came down, and went to his breakfast. Wilber Smith testified that he did not see him go out. Soon after the plaintiff and Smith entered, Ernest Brabb, a son of the defendant Brabb, came in. He sprinkled the floor, and began sweeping out. He saw the plaintiff go out. Young Smith, as usual, opened the trap-door, and went down cellar to throw up wood. Ernest Brabb was at the other end of the store, sweeping. Both Smith and Brabb testified that they did not remember having unlocked the back door that morning; but, as there was no evidence that any one else was there who could have done so, the jury must have concluded that they were mistaken. The plaintiff lived north and east from the store, and in returning from breakfast came to the rear of the store from the east, picked up an armful of wood, and, carrying it up the outside stairway, opened the rear door, and stepped in, and in doing so fell through the hatchway,
The negligence charged is that the defendants failed to properly guard the hatchway while it was open, or to warn the plaintiff of the danger. The plaintiff recovered a judgment of §1,000, and the defendants bring error. Errors are assigned upon the admission and rejection of evidence, and upon the charge and refusals to charge of the court, but the principal questions in the case are:
1. Were the defendants guilty of negligence?
2. Was the plaintiff guilty of contributory negligence?
It is not charged that the maintenance of this hatchway was of itself negligent. Trap-doors, elevator shafts, and similar openings in floors have long been a usual and necessary part of the appliances of business in most warehouses, manufactories, and other business buildings. The mere fact of their existence and use is no evidence of negligence. But they are dangerous openings, especially if located in places where they are obscured by darkness, or in such close proximity to doors that a person entering the door may step into them unawares. The fact of their dangerous character makes it the duty of those maintaining them to properly guard them when they are open. If, as in the case of this hatchway, it is not practical to guard it with a railing, it has been held that the owner is bound to give actual notice of the danger to every person lawfully approaching the place, and, in default of such notice, he is liable for all injuries resulting therefrom. Shear. & R. Neg. § 719, and cases cited.
It would seem, under the circumstances of this case,
The question of the plaintiff’s contributory negligence is one of more difficulty. He knew as much about the location of the trap-door as did the defendants. He knew that it was customary for defendants to use it at that time of the day in throwing up wood for the use of the store. He did not think, upon opening the door, to stop and examine to see whether the trap was open before stepping in. Any thought on his part at the moment would have prevented the accident, and the question is a very close one as to whether the duty on his part of. taking care was not as great, under the circumstances, as was the duty of the defendants. The controlling fact in the case seems to be, however, that the negligence of the defendants’ employés was active. The opening of the trap-door was a circumstance which of itself called their attention to the duty of guarding it. It was
The plaintiff, when on the stand, was allowed to answer .this question:
“ What is the fact about people waiting about the trapdoor for mail?”
And Miss Cargill was allowed to answer the question:
“To what extent was that portion of the store in the rear, right opposite the post-office, used by the public?”
This evidence was objected to by the defendants’ counsel, and error is assigned upon its admission. It is claimed that this testimony in no wise tended to show negligence on the part of the defendants in the use of the hatchway at the time of the accident, but that it was likely to prejudice the jury, by conveying the idea that it was negligence for the defendants to have the hatchway at that place at all. We do not see how this
James McFarlane, a witness for defendants, and long employed as clerk in the store, up to the date of the-accident, testified that, when using the trap-door, the back door was usually kept fastened. He was asked:
“What instructions were given by Smith and Brabb in-regard to that?”
This was objected to by plaintiff, and excluded. It is claimed by defendants’ counsel that they ought to have-been allowed to prove that the defendants had given instructions to their employés to keep the back door fastened when the trap-door was open. We do not see-how this is material. The injury complained of resulted from the negligence of the defendants’ employés in not locking the back door, or properly guarding the trapdoor. For this the defendants were liable, and they could not be relieved from such liability by showing that-they had given their employés different instructions.
Various errors are assigned by defendants upon the refusal of the court to give certain of their requests to the jury. We have examined them carefully, and, are of the opinion that all of the requests that ought to have been were in fact given, in substance, in the charge of the court.
The judgment is affirmed, with costs.