Negligence-Dangerous premises-Failure to guard trap-door-Evi-
dence-Contributory negligence.1

1. 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; and the mere fact of their existence and use is no
evidence of negligence. But they are dangerous openings,
which fact makes it the duty of those maintaining them to
properly guard them when open, and, where this cannot be
done by means of railings, it has been held that the owner is
bound to give actual notice of the danger to every person law-
fully approaching the place, in default of which he is liable
for all injuries resulting therefrom; citing Shear. & R. Neg. §
719, and cases cited.

2. It is a sound rule of law that it is not contributory negligence
not to look out for danger when there is no reason to appre-
hend any; citing Beach, Contrib. Neg. 41, and cases cited; and
every one has a right to presume that others, owing a special
duty to guard against danger, will perform that duty; citing
Railroad Co. v. Martin, 41 Mich. 667.

3. Where the question of contributory negligence is not free from
doubt, the facts should be submitted to the jury; citing Pal-
mer v. Harrison, 57 Mich. 183; Dundas v. Lansing, 75 Id.
499.

4. Where, in a negligence case, the injury complained of resulted
from the negligence of the defendants' employés in not prop-
erly guarding an open trap-door which they were using, it is
*Continued from Vol. 81.

1For full digest of points decided, see Table of Cases Reported.

82 1 90 573 90 614

82 1

97 237

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349

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109 306

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not

error to exclude testimony showing instructions from defendants to so guard it.

Error to Macomb. (Canfield, J.) Argued June 6, 1890. Decided July 2, 1890.

Negligence case. Defendants bring error. Affirmed. The facts are stated in the opinion.

Eldredge & Spier, for appellants, contended:

1. There can be no possible question but that the accident would have been avoided by a little more caution on the part of the plaintiff; and the means of his doing so were within his observation and reach. Under such circumstances the court should have directed a verdict in favor of defendants; citing Palmer v. Harrison, 57 Mich. 183; Hutchins v. Sleigh Co., 61 Id. 252. 2. If plaintiff, in going in through the back door, saw that the trap-door was open, and yet undertook to pass, he assumed the risk of so doing. One who voluntarily exposes himself to an evident risk, caused by another's negligence, cannot recover for resultant injuries; citing Cook v. Johnston, 58 Mich. 437.

3. There is no negligence, in a legal sense, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons and not as to others, depending upon peculiar relations and circumstances; citing Larmore v. Iron Co., 101 N. Y. 391, 394; Parker v. Pub. Co., 69 Me. 173 (31 Am. Rep. 262); Railroad Co. v. Griffin, 100 Ind. 221 (50 Am. Rep. 783). 4. That a party going upon what he knows to be dangerous premises, with no care, with no regard for what he is doing, is guilty of contributory negligence, has been too well established by the decisions of this Court to require citation of authorities. The defendants were entitled to an instruction as to what would be negligence upon a state of facts fairly established by the evidence; citing Sword v. Keith, 31 Mich. 247; Comstock v. Norton, 36 Id. 277; People v. Cummins, 47 Id. 337; Mynning v. Railroad Co., 59 Id. 257.

John W. McGrath, for plaintiff, contended:

1. The duty of a landlord to his tenants to keep the way or ways to and from the portions occupied by them safe for travel has been repeatedly affirmed; citing Elliott v. Pray, 10 Allen, 378; Milford v. Holbrook, 9 Id. 17; Parker v. Pub. Co., 69 Me. 178; Readman v. Conway, 126 Mass. 374; Looney v. McLean, 129 Id.

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33; Post v. The Guillermo, 26 Fed. Rep. 921; Caniff v. Navi-
gation Co., 66 Mich. 647; Powers v. Harlow, 53 Id. 507.

CAHILL, J. 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
January 26, 1888.

on

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,

had been accustomed to have his wood taken up the back way, by the load or cord at a time, having it thrown on the platform, and carried up in baskets. It was the custom of those employed in the store in the morning to use the hatchway for throwing up from the cellar the day's supply of wood. This custom was known to the plaintiff. It was also usual to keep the back door locked when the trap-door was open.

The door of the hatchway,

when opened, rested against a desk, and could be seen by one on the platform, about to enter the door, through the glass, which extended from the latch up. The plaintiff testified that some of the panes of glass were gone,

and had been replaced by tin. He said: "I did not look through the window. I couldn't." He was not asked, and did not say, why.

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,

and was injured. On hearing the door open, the young
man in the cellar, looking up, saw the plaintiff, and called
loudly to him; but the plaintiff says he did not hear him.
In the fall the plaintiff's leg was broken just above the
ankle, and his arm and shoulder badly bruised.

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 hatch-
way 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 ware-
houses, 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 injur-
ies resulting therefrom. Shear. & R. Neg. § 719, and
cases cited.

It would seem, under the circumstances of this case,

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