Plаintiff appeals a jury verdict of no cause of action. This litigation arose out of an unfortunаte accident wherein the elderly plaintiff slipped on cottage cheese dropped in defendant’s store by another customer a few seconds before the fall. At the time of the аccident a stockboy was filling the milk cooler from a hand truck which was stacked three or four feet high. Plaintiff took two to four steps past this truck and estimated that the cheese was from three to five feet beyond. The head of the dairy department testified that he had returned from lunch a minute оr so before the fall and observed nothing on the floor at that time. The spilled cottage chеese covered an area about two feet square on the supermarket floor.
The trial judge, over the objections of the plaintiffs attorney, concluded that the question of her cоntributory negligence was one of fact and should be decided by the jury. His claim was that no evidencе of negligence on plaintiffs part was shown. Plaintiff did not dispute the quality of the instructions, but contended thаt the subject should not have been given to the jury at all. This is the only issue to be resolved in this appeаl. Fortunately, we have several authorities which will be of assistance in determining whether or not the judge erred by taking this action.
The Supreme Court in
Funk v General Motors Corp,
"The question of contributory negligence is generally one of fact, not law.”
*237
Bruman v Yellow Taxicab Co,
"Contributory negligence is essentially a question of fact in all cases except where by plaintiffs own testimony or the undisputed facts the case is too plain for reasonable, fair-minded men tо draw different conclusions.”
The rule is further summarized in 18 Callaghan’s Michigan Civil Jurisprudence, Negligence, § 27, pр 257-258:
"The ordinary care which the plaintiff must exercise to be free from contributory negligence is suсh care as an ordinarily prudent person would exercise under the same or similar circumstanсes. It is said that no precise rules can be laid down by which all acts of contributory negligence can be measured, and each case must depend upon its own particular facts, and is usually а question of fact for the jury.”
A conclusion which might apply to this case can be found in
Vandervelt v Mather,
"Under the testimony in the case the matter of plaintiffs contributory negligence presents a question concerning which reasonable men might reach different conclusiоns. Such being the case said question is factual in nature and should be disposed of accordingly.” (Citatiоns omitted.)
A similar summary can be located in 57 Am Jur 2d, Negligence, § 295, p 692:
"Contributory negligence depends upon circumstances and is ordinarily a question for the jury to decide under proper instructions. The question of contributory negli *238 gence is for the jury when it arises upon a state of facts from which reasonаble men might draw different conclusions either as to the facts or as to the conclusions or inferences to be drawn from the facts.”
The Supreme Court speaking through Justice Edwards in
Churukian v LaGest,
"This Court has in recent years frequently reiterated that it must be a very сlear casé to justify a trial judge in taking a negligence action from the jury on grounds of contributory negligence.” (Citations omitted.)
Also see
Koehler v Detroit Edison Co,
Application of these principles to the facts indicate that minds of reasonable men could differ concerning the question of plaintiffs contributory negligence. Churukian, supra, hоlds that the case must be "very clear” before such a question can be taken from the jury. Plaintiff’s own testimony shows that she took several steps after passing the milk truck and at that point there was nothing tо obstruct her vision. In fact, her own statement shows her lack of observation as to where she was wаlking:
"No, I wasn’t looking for any cheese, so I didn’t look for it.”
A similar situation existed in
Goodman v Theater Parking, Inc,
"Ordinary prudence demands that a view be taken of the place whеre one is about to step. Plaintiff failed to take such view and, even if defendant was negligent in pеrmitting the cinder to remain upon the lot, plaintiff’s contributory negligence bars recovery.”
Also, plаintiffs counsel asserts on appeal that a different standard should apply where goods are placed on display and cites authorities from foreign jurisdictions to support this position. Even if true, the plaintiff knew where the milk was and failed to testify that she was distracted in any way. Under Michigan law a customer’s duty to use reasonable care for her own safety is not diminished by use of display cases by a merchant. For a discussion of this- subject and required knowledge of storekeepers as to unsafe conditions, see
Suci v Mirsky,
An analysis of the facts when coupled with the legal principles promulgated by Michigan appellate courts indicate that the presentment of the issue to the jury was correct and we so hold.
Affirmed. Costs to appellee.