Nielsen v. Henry H. Stevens, Inc.

101 N.W.2d 284, 359 Mich. 130, 1960 Mich. LEXIS 436

• Court: Michigan Supreme Court
• Decided: February 26, 1960
• Docket: Docket 23, 24, Calendar 47,761, 47,762
• Status: Published

Opinions

Enwards, J.

In this case plaintiff appeals from a jury verdict, claiming primarily that the trial judge’s charge dealing with defendants’ duty to a trespassing child was fatally erroneous.

Plaintiff is the father of David Thomas Nielsen, a minor, who was 7 years old at the time of this accident on Saturday, October 6,1951. Plaintiff sues as guardian of the boy to seek recovery for his injuries, and in his own right to recover for hospital and doctor bills.

The facts in this record reveal that the injury to the boy took place when a truck owned by defendant Stevens, Inc., and driven by defendant Katona, and a bicycle on which David was riding collided in a concrete areaway owned by defendant Stevens. Plaintiff’s testimony was to the general effect that the truck hit the boy, and the defendants’ that the boy rode his bicycle into the left rear of the tractor-trailer which defendant Katona was driving.

The portion of the judge’s charge objected to reads as follows:

“I charge you that mere toleration of a trespass does not alone constitute a license and certainly not an invitation. The minor here as a child of tender years has no greater rights as a trespasser or a licensee, than does an adult, and the only obligation that defendants owed to him was not to wilfully and wantonly injure him.” (Emphasis supplied.)

This language did indeed come from some prior Michigan case law. See Ryan v. Towar, 128 Mich 463 (55 LRA 310, 92 Am St Rep 481); LeDuc v. Detroit Edison Co., 254 Mich 86. The judge’s charge was delivered on January 30, 1958. This Court has subsequently dealt with this problem in 2 cases: Lyshak v. City of Detroit, 351 Mich 230, and Swanson v. City of Marquette, 357 Mich 424. The effect of these cases'is clearly to overrule the language upon which the trial judge had relied.

In Lyshah, as in the instant case, the Court was dealing with a fact situation where plaintiff alleged active negligence on the part of the defendant toward a minor child whose presence on defendant’s property in a place of danger was known to defendant. The cardinal rule stated in Lyshak, we believe was that adopted from 2 Restatement, Torts, § 334:

■ “A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is ¿subject to-.liability for bodily harm there caused .to Them by his failure to carry on an activity involving ,a .risk.'of death or serious bodily harm with reasonable care .for their safety.” Lyshak v. City of Detroit, supra, 249, 254.

See, also, Herrick v. Wixom, 121 Mich 384, 388 (6 Am Neg Rep 576).

We recognize that subsequent to the paragraph we -have -quoted from the trial judge’s charge, he also gave a charge pertaining to active negligence which „was. in general accord with the Lyshah rule. However, since he .directed the jury (we think correctly from this record) that the accident took place on ,-private -property, the jury may well Rave, felt that they were compelled to return the verdict they did return.

Appellant also contends that the trial judge erred in not instructing the jury that David’s parents were not responsible for the accident. The occasion pointed to for this claim is the closing argument of defendants’ counsel wherein he asserted that David’s parents were wrong in buying a bicycle for a 7-year-old boy. He made no claim that this action constituted contributory negligence in either case but asserted that plaintiff’s counsel opened the door to this topic in his jury argument. A review of the material objected to convinces us that the whole argument was quite irrelevant and that the trial judge should have said so.

Other questions posed by appellant would not occasion reversal. The verdict was not against the- clear weight of the evidence .and we find nothing in the evidence to support a request for a charge as to wilful or wanton misconduct.

We reverse for new trial under the Lyshak and Swanson rules. Costs to appellant. : ■>

Dethmers, C. J., and Carr, Kelly, Smith, and Kavanagh, JJ., concurred with Edwards, J.