Bumstead v. Bucht
| Decision Date | 26 July 1966 |
| Docket Number | No. 627,No. 3,627,3 |
| Citation | 143 N.W.2d 789,4 Mich.App. 4 |
| Parties | Clifford C. BUMSTEAD, Plaintiff-Appellant, v. Sune BUCHT, d/b/a Sune Bucht Freight Lines, Defendant-Appellee. Cal |
| Court | Court of Appeal of Michigan — District of US |
Richard M. Goodman, Goodman, Crockett, Eden, Robb & Philo, Detroit, for appellant.
Burney C. Veum, Sault Ste. Marie, for appellee.
Before HOLBROOK, P.J., and BURNS and McGREGOR, JJ..
Plaintiff-appellant appeals from a jury verdict of no cause of action.
The appellant has owned and operated a radiator repair shop in Sault Ste. Marie since 1958. The appellee, a public carrier since 1945, operates a general freight and delivery service with a fleet of 6 or more trucks, in the same city.
On May 20, 1960, while the appellant was assisting Vern Anderson, one of the appellee's drivers, in unloading a 400-lb. Euclid type radiator, the crate struck the sidewalk on its corner, tipped over and fell on the appellant, crushing his left leg and causing severe permanent injuries.
For many years the appellee had delivered radiators to the appellant and his predecessors in business. For at least two years prior to the accident, Anderson had delivered radiators, including the heavy Euclid type, to the appellant, without incident. The appellant on many occasions had assisted Anderson in unloading crates using a metal roller skid in the unloading operation.
The appellant claims the trial judge erred by injecting the theory and terminology of assumption of risk in charging the jury on contributory negligence. It is further alleged the trial judge erred in refusing to give the appellant's request for a peremptory charge of no contributory negligence.
The trial judge in his charge to the jury did evoke the theory, and use the terms of assumption of risk on 2 different occasions. The first occasion occurred when the court was stating the defendant's theory of the case and said:
'that it was due to the negligence of the plaintiff in voluntarily standing there, or doing something wrong, or in voluntarily assuming the risk of a dangerous practice.'
Later the court stated:
After the jury had retired to consider the case, they returned and asked for additional instructions, and while the judge did not use the term 'assumption of risk' he used some of the same language that he had used in connection with the theory of the assumption of risk, when he stated:
'Did he voluntarily expose himself to danger when it was apparent to a reasonable person that an injurious result would likely occur. Now if you find that he did voluntarily expose himself to danger, when it was apparent to a reasonable person that he would be exposing himself to danger, and that a bad result would likely happen, then he might be guilty of contributory negligence barring his recovery.
The trial judge did not have the benefit of Felgner v. Anderson (1965), 375 Mich. 23, 133 N.W.2d 136, when this case was tried. In the Felgner case Justice Souris presented an exhaustive history of the doctrine of assumption of risk. On page 56, 133 N.W.2d on page 153, he states:
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Wilhelm v. Detroit Edison Co.
...was a correct statement of law. Assumption of risk has been abolished in Michigan. Felgner v. Anderson, Supra; Bumstead v. Bucht, 4 Mich.App. 4, 7, 143 N.W.2d 789 (1966). 3. Did the trial court err in refusing to give Edison's requested instruction number Requested instruction number 4 conc......
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Carey v. Toles
...is later discredited, it would not make sense to require it to do so once cases which so held have been overruled.Bumstead v. Bucht (1966), 4 Mich.App. 4, 143 N.W.2d 789, placed before us a case wherein the judge injected the theory and terminology of assumption of risk in its charges. We n......