Freedman v. Palmer Park Theater Co. ( 1956 )

Reid, J.

(dissenting). Plaintiff sued defendant in the common pleas court for the city of Detroit for damages arising from claimed negligence. Plaintiff liad judgment in the common pleas court for $800 damages and costs. Defendant appealed to the circuit court for the county of Wayne which reversed and vacated the judgment for plaintiff rendered in the common pleas court. Plaintiff appeals to this Court from the judgment of the circuit court.

Plaintiff testified that on February 11, 1951, she was in the theater of the defendant at 17013 Hamilton avenue in Detroit with her escort. It was a Sunday night. About midnight as she was leaving the theater, she did not go directly out of the theater but went to the ladies’ lounge while her escort went to get his car. While she was coming out of the ladies’ lounge her foot slipped on the sill of the door leading from the washroom into the rest room. There was a •carpet from wall to wall in the room to which she was going and when she slipped on the door sill her heel caught in an open space in the carpeting between the carpet and the sill of the door. There was a space •of about an inch or an inch and a half between the sill and the edge of the carpeting. When she was leaving the washroom and going into the ladies’ lounge, there was nothing apparent to call her attention to anything unusual on the sill of the door. When she had fallen and was lying there, her hands were “full of some greasy substance that was on the sill.” As she was walking through the doorway, the gap between the carpeting and the sill was not observable by ordinary observation. In practical effect this constitutes the showing relied on by plaintiff of negligence on the part of the defendant. No knowledge by defendant of the existence of a greasy condition of the door sill is shown.

Plaintiff claims in her declaration that the defendant was negligent in that it,

“Permitted certain wet and slippery substances to be on the bottom sill of the door which leads into the anteroom of the ladies’ rest room, and also permitted a space to exist between the said bottom door sill and the carpeting, so that plaintiff while walking ont of the said rest room slipped and engaged the heel of her shoe in said space and tumbled and fell with great force and violence to the floor, thereby suffering bruises, contusions and severe bodily injury.”

The judge of the common pleas court found the maintenance of the carpet defective and the defendant on that account guilty of negligence.

The circuit court on appeal to that court found:

“It is my judgment that this doorway presents no situation of danger whatever. Any risk that anyone encounters in going through that doorway is infinitesimal as compared to the risk that everyone assumes every time he walks down a flight of stairs. The testimony in the case discloses, at the very outside, an impediment which is neither as broad nor as high as, for example, that which pedestrians encounter in crossing every street upon which there are streetcar tracks, particularly streets where the streetcar tracks are laid upon a curve with high flanges on the inner sides of the rails. I have no-doubt whatever that within the city of Detroit there are 10,000 situations which are comparable to the one in evidence in this case, and which no one has ever dreamed of considering to be any element of danger whatever.”

The circuit court reversed the judgment of the common pleas court and entered a judgment of no cause of action. See Holmes v. United Theatres Co., 186 Mich 548, in which the plaintiff tripped on a mat as she was entering a theater, in which case the verdict directed for the defendant was affirmed upon appeal to this Court, and in that case we cite Nephler v. Woodward, 200 Mo 179 (98 SW 488), in which case the plaintiff had caught her foot in a hole in the aisle carpet while being shown to a seat in defendant’s theater. See, also, Hunker v. Warner Brothers Theatres, 115 W Va 641 (177 SE 629).

The burden rests on the plaintiff to prove the negligence of the defendant and plaintiff’s want of contributory negligence. There is testimony that the width of the alleged depression was 1 to 1-1/2 inches, but there is a total absence of testimony as to the depth of the depression. Plaintiff positively testified she did not observe the depression complained of. She testified:

“When I was leaving the washroom and going into the ladies’ lounge there was nothing apparent to cause [call?] my attention to anything unusual on this floor sill. * * * As I was walking through, the gap between the carpeting and the wall was not observable,by ordinary observation.”

Plaintiff failed to introduce evidence that the gap was such that a person acting with ordinary prudence, would, without the presence of slippery grease on the sill, slip or stumble at the gap. In neither declaration or testimony does the plaintiff show or claim that the defendant had any knowledge of the presence of the grease on the threshold, before the accident.

Even though defendant introduced no testimony, it is nonetheless incumbent upon plaintiff to establish the negligence of defendant, in the absence of which plaintiff may not prevail. Plaintiff failed as a matter of law to introduce sufficient testimony to establish the negligence of defendant. The circuit judge recites in his opinion that upon appeal from the common pleas court, the circuit court does not hear the case de novo. However, it is still the duty of the plaintiff to produce sufficient evidence of negligence. No prima facie case was established by plaintiff. We consider that because the plaintiff had not made out even a prima facie case, this Court has the right and is vested with the authority oil this appeal to determine that there is no foundation evidence for a charge of negligence. The plaintiff must fail and we order a judgment of not guilty of negligence.

We also call attention to the case of Konen v. Moose Lodge No. 288, 345 Mich 80, in which the trial judge entered judgment for defendant notwithstanding the verdict of the jury, under circumstances quite-similar to the instant case.

The circuit judge stated that it was his conclusion that- the evidence in the case failed to establish a cause of action. The judgment of the circuit judge adjudging defendant not guilty should he affirmed,, with costs to defendant.

Sharpe and Carr, JJ., concurred with Reid, J.