*1 Reports. 648.
JONES MICHIGAN RACING ASSOCIATION. Negligence Contributory Negligence — 1. —Public Places. going public semipublie places possessed One about in when may eseape being charged his natural faculties safety. if he is heedless of his own Self-Exposure Danger. 2. Same — ordinary One who knows or in the exercise of care should have danger injury might known the existence which rea- sonably voluntary and who acts or omis- exposes danger guilty sions negligence, himself to such ordinarily prudent person if under the circumstances an would injury not have incurred the risk of which such in- conduct ' volved. Duty Reasonably 3. Same —-Invitor’s to Maintain Safe Premises. A business invitor owes the to its patrons customers and premises to maintain its in a safe condition and exercising prevent due care to and to obviate the existence situation, of a known it or that should have been injury. result in -Attempt Jump 4. Same —Race Track- — Puddle of Water. Plaintiff, track, invitee at defendant’s race equally who was as aware as defendant premises condition of had arisen being upon virtue of tickets thrown floor under ' grandstand on which there were of water about 1/4 deep, as a matter attempting of law in over a 4-foot- water instead of place staying it to a bet or in dry spot where he was. References for Points in Headnotes Jur, Negligence 38 Am 189. [1] [1, § 2, Jur, 38 Am Negligence 4] 182. § 38 38 Am Jur, Negligence Jur, Negligence seq. 96 et [3] [4] § 184,185. §§ Michigan Raging V: Appeal Wayne; (Robert M.), Toms J. Sub April (Docket mitted No. Calendar No. 3, 1956. Decided October 46,735.) 1, 1956. *2 Joseph against Michigan Racing
Case Michigan corporation, injuries Association, a for premises. Judgment sustained in fall on for defend- appeals. non ant obstante veredicto. Plaintiff Af- firmed. plaintiff. Davidson,
Carl F. for (John counsel), Snider & Feikens, Feikens defendant. judgment C. *J. Prom non obstante Dethmers, plaintiff appeals.
veredicto for defendant the His damages resulting injuries suit was for from sus- tained in an accidental fall while a “business invitee” premises. on defendant’s
Viewing light the in the most favorable plaintiff, pertinent to upon facts are: Plaintiff entered property
defendant’s race-track and went to a paved grandstand; concrete area beneath he dry place; stood there for 10 or 20 minutes on a raining, water was blown the entrance way puddles of water formed on the concrete; dry place go he window to decided leave the to a ticket get mutuel a ticket and make a bet on a horse; he testified that all the losers had thrown their lying down, tickets that he saw tickets all over the place, that at that time he knew some of them were puddles wet and knew that tickets on wet proceeded floor created a condition; as he puddle ticket window he came to a long, 4 quarter- water or 5 feet 4 or 5 feet wide, and deep, attempted jump; over which he he tes- puddle tified that the about 15 was- feet from where Michigan Reports. spot standing dry on a he had been attempted puddle nearest to to the one over which he jump away probably “8 10, or feet” but that he walked around the one it, could attempted he there all because were place; puddle question over as he came to the long step, leaving leaping he took left his landing right foot and heel in the right there he were some threw his tickets; up jumped hand air he and fell on his left as right arm him; as his foot -outfrom under after went right the fall there were on the heel of his shoe. plaintiff guilty
"Was
a matter of law? Montgomery
. Plaintiff Torma relies on Ward question Qo., Mich which we held that the plaintiff’s contributory negligence for failure to transparent angle- notice a iron of ice thin, coat *3 edge step, of defendant’s store on which she slipped, question awas of fact and not of law. In (pp that case we 477, said (cid:127) explanation “Her as to her failure to note the con- angle illogical. dition of the If, bar is as she coating claimed, ice the bar thin and transparent, have been seen Under the assumption fair is a that it could not except by scrutiny. her rather close suggested by her circumstances clearly appear reasonably it does not that a careful prudent person would have acted otherwise * * * under the or like same circumstances. “Any guilty claim of contribu- tory negligence large as a matter of law must rest in knowledge of her of the situation.” basis Distinguishable are the at in which bar, facts before the accident, saw recognized all floor, and wet tickets over the should recognized have that a condition was Racing v. thereby knowledge, in the face of such and, created leap on one foot the 4- undertook puddle. across to 5-foot Dahl, Elliott 380, In 382, v. 299 Mich Mazanec, 43, 62, v. 301 Mich Nezworski this Court quoted approval Co., Blankertz Mack with v. : following 527, 263 Mich 533, “ definitely holding committed to ‘This court is public going places semipublic that one about may places not heedless of his possessed when of his natural faculties charged being escape if he is safety. If own he fails to care use the ordinarily person that an careful would have used surrounding's, consequence in- like and in sustains jury, he must bear his own misfortune. Bedell v. 370); Berkey, Shorkey Rep Mich v. St 450; Garrett Co., P. Tea 259Mich v. S. Great A. & W. Boyle Theatres, Inc., 261 Mich v. 262; Butterfield Rapids Bedding Preketes, 629; 262 Mich Grand Co. Rapids Temple Co., Furniture 218 Mich 254 Mich Grand Goodspeed Real 486; Co., Rice v. Estate ”49.’ Goodspeed Co., Rice Real Estate this said: Court ordinary : ‘‘Onewho knows or in the exercise care danger known the existence of injury
which voluntary exposes who acts or omissions him- danger negligence, self such if under ordinarily prudent person the circumstances an injury would not have incurred the such conduct involved.” risk says dry Defendant that as stood on the spot, (1) accident, before the he had the choice of question around the inasmuch *4 puddle, next the nearest he testified, was “8 or (inconsistent or 5 feet” from it therewith, however, point, plain- but the to most favorable him on this tiff’s that he could not have walked around Michigan Reports. 346
652 puddles all over the puddle there were because deep quarter-inch walking through (2) place); or (3) trying or over it; to than rather dry spot, than rather remaining on a he was, where place a bet. testi- going mony, to The a ticket window to light plain- most favorable construed choices, 2 if not the latter that at least tiff, discloses n open that it or and were first, apparent him at the time that have been should any actual- than the course less risk of them involved urges con- ly pursued that it was Defendant him. tributory negligence have selected not to Support for that conten- courses. of these safer one expressed clearly Lake Shore tion is Southern Neg Bangs, Mich R. Co. v. Fairgrove, Township 29); Cas Rohlfs Co., Mich 142. Elevator v. Otis Burchard 555; (p Torma, said this Court to its defendant owed invitor the- “As patrons, including customers premises maintaining safe con- its exercising prevent and to care to due and of dition known to it situation, of a the existence obviate might result have been that should injury.” plaintiff’s declara- law, that rule of Consistent with liability plant on defendant’s tion seeks the leaving theory that defendant muddy puddles “al- floor, and wet tickets the though having
knowledge”
“con-
condition
that this
endangering
life
limb of
stituted
hazard
'
essence, then,
defend-
inviteés.”
business
alleged negligence
it knew
ant’s
presence
and wet
of the
known of the
in in-
result
that that condition
jury
and ad-
have seen
Plaintiff could
to.invitees.
knew of
and, hence,
trial that he did see
at
mitted
it consti-
of that condition
the existence
*5
Eaoing
If
a
it
hazard.
tuted
permit
was
for defendant to
a
the existence of condition which it
or
knew
known
was unsafe for
in
may plaintiff,
how
who
vitees,
should have been and
equally
of
danger,
aware
the condition and
charge
escape
contributory negligence
of
as a
choosing merely
matter of law in
to walk thereon
leap
jump,
to
open
but
when other choices were
point Shorkey
him? In
Great
A. &P. Tea Co.,
plaintiff
Expressing duty the rule as to the reposing language on invitor in an not dissimilar quoted that from Torma, above this Court said 452): (p agree upon storekeeper the rule a “Counsel safety of, an
not is his insurer his customers but duty provide use reasonable care to a rea- sonably place premises.” for them safe on his say (pp This then went Court predicated upon must be “Defendant’s theory that it was bound to know the of the the holes size register, in the size heels shoes cus- by many tomarily customers, and, worn its a as prudent person, reasonably that the kind should 'have of accident which occurred to likely using happen to customers reasonable safety. for their care own Michigan Reports. 654' reasonably pru “By the same as token, chargeable knowledge person, dent would of the holes heels and size so the size her thing register, a hot-air of whose ex common knew, she at least to extent location istence might go through apprehending that the heels *6 addition, had make holes. about her. Rice Good reasonable observation speed Real Co., Estate 49. Her attention Ordinary not distracted. care would have was dis necessity special caution to her the of in closed register stepping full of heels on holes. small [*] defendant and cannot “We [*] [*] agree was that, negligent, plaintiff under circumstances also was here, if
recover.” Similarly plaintiff of the same here, charges neglect he to defendant. If defendant was negligence ignoring guilty of the existence of a of which it or should have known condition knew and foreseen it should have would be plaintiff, as he seen, then who should have invitees, and was, as he of its existence aware, and been did, dangerous, did, he that it he said was contributory negligence equally guilty of for was acting, ignored plaintiff having as did danger. Shorlcey, disregard that of defendant. with costs to Affirmed, JJ., Carr, concurred with Sharpe, Kelly, Dethmers, C. J. in the result.
Boyles, J., concurred (concurring result). Plaintiff tes- J. Black, seeing any (betting- “I tified : don’t remember up.” only got slips), other after I wit- not until point, to the sworn testified: “I ness (Jones) he fell.” the floorbefore not see tickets on did Racing 655' strength, I that' hold of this On neglh actionably prove defendant failed to gent of issue
consequently cited in 80. To moot. collection cases See Lodge 288, Mich No. Konen v. Moose Inc., paraphrase Halliburton, P. Whitehead v. Erle 581), in Konen P2d cited aforesaid: 190Okla In slips betting had that the evidence the absence length time só the deck for sufficient been on ordinary care the defendant should in the exercise of have discovered and removed such
slips, there was a proof of the de failure fendant mit to no of fact to issue sub there, hence, jury. betting slips, slippery by the col- made It was the He that caused to fall. rainwater, lected all-day puddled presence rainwater has shown slips ques- failed to that the on the deck but show for the water,- in or near the there, tion were bring play length into of time as would such discovery and removal. aforesaid rule of *7 (Const mandate In accordance with constitutional 7) foregoing § dissent, art reasons 1908, from the decision reached
by today’s majority, are ground affirm on in this case. I vote to recorded the first essential of proof plaintiff’s of action- case— lacking a matter law. able —is concurred with J. Smith, J., Black, J., in the decision of this took no Eewards, case.