Moore v. Masonic Building Ass'n , 324 Mich. 507 ( 1949 )


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  • I do not concur in the opinion written by the Chief Justice.

    The accident happened around 7:15 p.m., March 5, 1945. Opening the door was evidently due to the unauthorized act of some third party. Defendant had no occasion to anticipate a third party would open the coal door in question; no trouble of that kind had occurred during all the years that the doors had been in use. *Page 521

    Defendant's janitor Hermel testified that at 5 p.m. of the day in question, he carried out cinders and went right over the doors in question and they were closed. Mr. Neufer, president of defendant, testified he went over the coal doors in question about 5:30 p.m. and the doors were closed at that time. There is no contradiction of the testimony of these two witnesses.

    Plaintiff's witnesses who testified as to one or both of the doors being open at some time during the evening in question, never informed defendant of the door or doors being open.

    Plaintiff failed to prove that the door in question was open a sufficient length of time before the accident to charge defendant with knowledge that the door was open. See Gunning v. King,229 Mass. 177 (118 N.E. 233); City of Cleveland v. Amato,123 Ohio St. 575 (176 N.E. 227).

    We do not follow the doctrine of res ipsa loquitur.

    The judgments are reversed. The cases are remanded to the trial court with instructions to set aside the verdicts and enter judgments for defendant. Costs to defendant.

    BOYLES, NORTH, DETHMERS, and BUTZEL, JJ., concurred, with REID, J. BUSHNELL, J., concurred in the result. *Page 522

Document Info

Docket Number: Docket No. 83, Calendar No. 44,321.

Citation Numbers: 37 N.W.2d 457, 324 Mich. 507

Filed Date: 4/11/1949

Precedential Status: Precedential

Modified Date: 1/12/2023