Polston v. S.S. Kresge Co. , 324 Mich. 575 ( 1949 )


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  • Defendant was the lessee of the ground floor of a 2-story store building and of a 10-foot strip across the front thereof covered by a sidewalk which extended in width beyond the strip onto the public right-of-way to a curb. There was nothing about the appearance of the sidewalk to indicate that the strip was not part of the public sidewalk and the defendant permitted the public to use it as such.

    Plaintiff placed a ladder against the front of the building with its base resting on the 10-foot strip and climbed up to wash a second-story window, for which job plaintiff's employer had a contract with the building's owner. An employee of defendant came out of the store and lowered an awning in front of it, knocking down the ladder and causing plaintiff to fall and suffer injuries. Defendant's employee admitted that from the position where he stood while lowering the awning he could have seen the ladder, but that he did not do so.

    Plaintiff's suit for resultant damages was tried by the court without a jury. The court held plaintiff to have been a trespasser to whom defendant owed no duty other than to refrain from willfully and wantonly injuring him and, the latter not being claimed, found for defendant. Plaintiff appeals, contending that he was an invitee to whom defendant owed the duty to keep his premises in a reasonably safe condition for plaintiff's use, or, at least, a licensee to whom defendant owed the duty to use ordinary *Page 578 care to prevent injury to him arising from defendant's active negligence.

    Was plaintiff an invitee, licensee or trespasser? Mere silence, acquiescence or permission standing alone does not establish an invitation, although a license may thus be created. Peck v.Adomaitis, 256 Mich. 207. From Hargreaves v. Deacon,25 Mich. 1, it appears that damages for accidental injuries sustained on private premises resulting from the negligence of the owner may not be recovered by one on the theory that he is an invitee "unless the party injured has been induced to come by personal invitation, or by employment which brings him there, or by resorting there as to a place of business, or of general resort held out as open to customers," et cetera. By these tests plaintiff was not defendant's invitee. Members of the public in using the 10-foot strip as a public sidewalk with defendant's knowledge, permission and acquiescence were, as such, not trespassers but licensees. Morrison v. Carpenter, 179 Mich. 207 (Ann. Cas. 1915D, 319); Douglas v. Bergland, 216 Mich. 380 (20 A.L.R. 197); Sylvester v. Grand Rapids Bookcase Co.,169 Mich. 340; Burns v. Union Carbide Co., 265 Mich. 584. The testimony shows that it had long been a custom in the community for window washers to place ladders on sidewalks in front of buildings in connection with their work and that defendant knew that this was being done, over a period of 13 years, at least once a month, by employees of plaintiff's employer on the walk here in question. While it is true that the depositing of rubbish or placing of barriers upon, or other uses of the strip inconsistent with the general purposes of the license, without the defendant's consent, would amount to trespass (25 Am. Jur., Highways, § 137), nevertheless the license to use the strip for sidewalk purposes extended not only to use thereof for pedestrian travel, but also to other uses *Page 579 commonly made of such sidewalks which are not inconsistent with the license. Collins v. City of Chicago, 321 Ill. App. 73 (52 N.E. [2d] 473); Gilligan v. City of Butte, 118 Mont. 350 (166 Pac. [2d] 797); Beaulieu v. Tremblay, 130 Me. 51 (153 A. 353); Leighton v. Dean, 117 Me. 40 (102 A. 565, L.R.A. 1918B, 922); Frostman v. Stirrat Goetz Investment Co.,65 Wash. 608 (118 P. 742); Schmitt v. City of Syracuse,229 N.Y. 161 (128 N.E. 119, 24 A.L.R. 763). This was particularly true of the kind of use made of the strip by plaintiff, in which defendant had acquiesced for 13 years. We are not in accord with defendant's contention that plaintiff's license to so use the sidewalk became revoked and that plaintiff in so using it became a trespasser during such time of the day as the sun might be shining upon the windows under the awning in question merely because it was established that defendant had on two occasions during the 13-year period complained to plaintiff's employer that rolling up the awning for the purpose of placing ladders while the sun was shining there would damage defendant's merchandise in the show windows and that defendant had for that reason asked plaintiff's employer to wash the windows earlier in the morning.

    Although contending that plaintiff was a trespasser, defendant relies on such cases as Hargreaves v. Deacon, supra, Douglas v. Bergland, supra, and Lauchert v. American S.S. Co.,65 F. Supp. 703, as authority for the proposition that even as to licensees a property owner owes no duty of care other than that of refraining from willfully or wantonly injuring him. Those were not cases, however, of active negligence, but of negligence in maintaining premises in a defective or dangerous condition. In the instant case, plaintiff charges defendant's employee with active negligence in lowering the awning in disregard of plaintiff's safety and without looking *Page 580 and observing the presence of plaintiff or the ladder upon which he stood. In Herrick v. Wixom, 121 Mich. 384 (6 Am. Neg. Rep. 576); Schmidt v. Michigan Coal Mining Co., 159 Mich. 308, and Verlinde v. Michigan Central Railroad Co., 165 Mich. 371, we held, to quote from the Schmidt Case, that:

    "After the owner of premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary carehe should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence."

    It may be urged that in the last 3 cases the presence of the licensee or trespasser was known to the owner and that, therefore, the quoted words "or if in the exercise of ordinary care he should know of their presence" amount to obiter dictum and that the applicable rule was laid down in Preston v.Austin, 206 Mich. 194, in which the presence of the trespasser was not known to the owner and in which it was held that the owner was under no duty to be on the lookout for a trespasser in order to avoid causing him injury resulting from the owner's active negligence. The instant case is distinguishable, however, from the Preston Case in that there the plaintiff was a trespasser whose presence the owner had no reason to anticipate, while here he was a licensee whose presence defendant did have reason to anticipate. Plaintiff in the Preston Case was not injured while traveling on a path or walk commonly traveled by licensees, but while it was in the midst of defendant's hayfield, which it was not shown that licensees or trespassers were wont to cross. An examination of Morrison v. Carpenter, supra; Habina v. Twin City Electric Co., 150 Mich. 41 (13 L.R.A. [N.S.] 1126); Douglas v. Bergland, supra, and Hargreaves v.Deacon, supra, discloses that in considering the duty owed by the owner of premises to *Page 581 licensees, let alone trespassers, "a different rule applies to the license to use a way or path which has been openly and notoriously held out to the public for use from a license to go upon premises generally" (Douglas v. Bergland, supra). A logical basis for distinction is that a greater duty should rest upon the owner of premises to anticipate and look out for the presence of licensees on a commonly-travelled way or path than of licensees or trespassers on the premises generally. Consequently, when, contrasted with the factual situation in the PrestonCase, we were confronted with a case in which, under the facts, it might be found that defendant had reason to anticipate plaintiff's presence in a position of danger on defendant's premises, we quoted with approval the above quotation from theSchmidt Case, and went on to say:

    "Kuite (defendant's employee) said he did not see plaintiff on the screen because of the position of his crane. But it appears undisputed that the coal clogged, there was no workman present to loosen it, and Kuite took directions for more coal from plaintiff; and there was testimony that he knew customers climbed on the device to release clogging. Although the jury may have found that there was not sufficient custom of the yard to constitute plaintiff an implied invitee or a licensee in going on the screen, it could have found that there was sufficient of a practice, known to Kuite, as would have put him on inquiry as to plaintiff's position when he loosened the coal and, in the exercise of reasonable care, he (Kuite) should have anticipated that plaintiff might be on the screen. If he (Kuite) knew or was chargeable with knowledge that plaintiff was on the screen, Kuite was guilty of active negligence if he overloaded the device and knew it was unsafe, as claimed by plaintiff. The issues of Kuite's duty and plaintiff's contributory negligence under the circumstances *Page 582 were for the jury even though plaintiff were a trespasser."Wieghmink v. Harrington, 274 Mich. 409.

    In the instant case defendant was well aware of the fact that the strip was commonly used by the public as a sidewalk and that employees of plaintiff's employer were accustomed to placing ladders in front of the store building for window-washing purposes and that this interfered with the use of the awning. The quoted language from the Wieghmink Case is, therefore, peculiarly applicable. If defendant knew or in the exercise of ordinary care should have known of plaintiff's presence it was bound to use ordinary care to prevent injury to him resulting from defendant's active negligence.

    The question of defendant's active negligence and of plaintiff's contributory negligence, discussed in parties' briefs on appeal, were, under all the circumstances of the case, questions of fact which should have been but were not determined by the trial court.

    Judgment for defendant reversed and a new trial granted, with costs to plaintiff.

    SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, and CARR, JJ., concurred.

    BUTZEL, J., did not sit. *Page 583