Cox v. Theatres Corp. , 306 Mich. 479 ( 1943 )

The judgment should be affirmed. There was testimony to the effect that the lights were out, that the head of the stairs and the stairsteps were unlighted. Defendant denied that the lights were out. Plaintiff was an invitee, and it became a question of fact as to whether the defendant had failed to exercise such ordinary care and prudence as to render its premises reasonably safe for plaintiff's use. The court charged the jury:

"Now, there is some testimony here in reference to the lights being out. That would raise a little different situation, because if the lights were out then it would be incumbent upon the plaintiff to prove by a fair preponderance of the evidence that the defendant knew the lights were out, or should have known they were out had reasonable inspection been made.

"Our Supreme Court has commented upon that in this way:

"`There must be proof that the unsafe condition was known to the one upon whom the duty rested, or that the character of the danger or the passage of time was such that knowledge of the menace should have come to the reasonably prudent person.'

"Now, in this case there is not any testimony, if you believe under the testimony that the lights were out, there is not any testimony that they were out for 10 minutes or 5 minutes or 20 minutes, and you would have to find from the testimony, that is, by a fair preponderance of the evidence, that the defendant knew that the lights were out, or should have known the lights were out if they had reasonably inspected the premises."

The charge was proper. In Oppenheim v. Pitcairn, 293 Mich. 475, Mr. Justice BUTZEL, writing for the court, said:

"Where the charge of negligence is the failure to maintain the premises in a reasonably safe condition, we have always insisted upon proof that the unsafe condition was known to the one on whom the duty rested, or that the character of the danger or the passage of time was such that knowledge of the menace should have come to the reasonably prudent incumbent."

The jury returned a written verdict that the defendant was not guilty of negligence. Judgment for defendant should be affirmed.

NORTH, J., concurred with BOYLES, C.J.