Carreras v. Honeggers & Co., Inc.

• Citation: 244 N.W.2d 10,68 Mich.App. 716
• Decision Date: 17 May 1976
• Docket Number: Docket No. 22489
• Parties: Eugene Robert CARRERAS and Gloria Carreras, Plaintiffs-Appellees, v. HONEGGERS AND COMPANY, INC., an Illinois Corporation, Defendant-Appellant. 68 Mich.App. 716, 244 N.W.2d 10
• Court: Court of Appeal of Michigan (US)

Page 10

244 N.W.2d 10

Eugene Robert CARRERAS and Gloria Carreras, Plaintiffs-Appellees, v. HONEGGERS AND COMPANY, INC., an Illinois Corporation,

Defendant-Appellant.

Docket No. 22489.

68 Mich.App. 716, 244 N.W.2d 10

Court of Appeals of Michigan.

May 17, 1976.

Released for Publication July 19, 1976.

[68 MICHAPP 719] Hooper, Hathaway, Fichera, Price & Davis, by Peter A. Davis and Bruce T. Wallace, Ann Arbor, for defendant-appellant.

Donald E. Shelton, Ann Arbor, for

Donald E. Shelton, Ann Arbor, for plaintiffs-appellees.

Before KELLY, P.J., and V. J. BRENNAN and DANHOF, JJ.

DANHOF, Judge.

On June 1, 1971, plaintiff Robert Carreras, who was then employed as a truck driver, delivered to the defendant's mill a load of corn gluten. Plaintiff on direction of Kenneth Johnson, an employee of the defendant, positioned his truck so as to dump his load into a metal hopper designed to receive the load. At the bottom of the hopper there was a rotating screw auger approximately 10 inches in diameter which carried the material out of the hopper and into the defendant's building. The front end of the truck was [68 MICHAPP 720] elevated so as to dump the load out a small door in the tailgate.

The unloading went smoothly at first, but after a short time the gluten ceased to flow. Plaintiff explained to Mr. Johnson that this was because the cohesive mass had settled in transit. After several attempts to free the load plaintiff decided to climb into the truck with a shovel. He tossed the shovel over the side of the truck intending to follow it in to free the load. However, the shovel bounced around and fell out the open door at the rear end of the truck and into the hopper, jamming the auger. Plaintiff told Mr. Johnson to shut off the power to the auger. Johnson when deposed testified that he pushed four buttons to stop the machinery and informed the plaintiff that the conveyor had been shut off. Plaintiff asked for and received confirmation from Johnson that the power was off, then climbed into the hopper with a crowbar supplied by Johnson. Johnson was then sent to find a light for the plaintiff. Plaintiff's efforts to free the shovel were successful, however, when the shovel popped free the auger blade began to turn again, amputating plaintiff's left leg above the knee.

In plaintiff's action for negligence a jury returned a verdict of $500,000 in favor of Mr. Carreras and $50,000 in favor of his wife the co-plaintiff.

The first issue raised on appeal is whether the trial court erred by allowing certain testimony on redirect examination related to a 1972 safety code. The rule is that on redirect examination a witness ought to be allowed to explain an answer made on cross-examination. Prieskorn v. Kiehler, 4 Mich.App. 679, 681, 145 N.W.2d 397 (1966).

While the 1972 safety code may not otherwise be [68 MICHAPP 721] relevant to a 1971 accident the substance of the code was first brought into issue by defense counsel who when cross-examining plaintiff's expert witness asked him about various changes in the 1972 code, and himself introduced portions of the code on cross-examination. A review of the record indicates that the trial court restricted the plaintiff's attorney on redirect examination to eliciting testimony only as to those portions of the 1972 code brought out on cross-examination. To do so was not error. Prieskorn v. Kiehler, supra.

The second issue is whether the trial court committed reversible error by denying the defendant's motion for a mistrial after the jury heard testimony of a safety measure taken by the defendant after the time of the accident.

In his opening statement defense counsel explained to the jury at some length why it was not feasible to put a grate over the screw auger. Later, during cross-examination of the plaintiff's expert witness, he asked:

'Q. You have a PhD in Engineering and you fell into the pit?

'A. Yes, I did.

'Q. It's not possible, is it, Mr.--Dr. Youngdall to design a piece of machinery fool-proof from every possible type of accident, is it?

'A. No, but you can make it reasonably safe and this wasn't reasonably safe.'

Apparently in response to the above, the following questioning took place between the plaintiff's attorney and the expert witness on redirect examination:

'Q. One final question, Professor Youngdall. Mr. Davis went over in detail your falling into the pit when [68 MICHAPP 722] you went out to Honnegers Mill and I believe you told him that you did indeed fall up to your groin?

'A. Yes.

'Q. Did you fall all the way to the auger blades?

'A. No.

'Q. Why not?

'A. Because there was a grating over the pit where, I had had one bar removed so that the measurements could be made because the grating was there, it kept me from falling in and getting hurt, I got dirty.'

After excusing the jury from the courtroom the defense counsel moved for a mistrial. The motion was denied. The trial court then asked him whether he wished the court to instruct the jury to disregard any subsequent repairs. The defense counsel declined this offer.

The trial court did not commit reversible error in denying the defendant's motion for a mistrial. First, since the defendant put feasibility of repair into question, the above response by the witness indicating safety measures were feasible would appear to fall within an exception to the general rule excluding evidence of subsequent repairs. McCormick, Evidence (2d ed.), § 275, p. 667. Next, where the question was answered before objection and the defendant declined a curative instruction, it was not error to let the testimony stand. Murphy v. Manistee R. Co., 194 Mich. 595, 600--601, 161 N.W. 876 (1917). Finally, even if admission of the above testimony were deemed error, the record does not show the plaintiff argued subsequent repair as proof of negligence. Moreover, there were other facts shown upon which a verdict could have been rendered, so that if error occurred, it was not reversible. Judis v. Borg-Warner Corp., 339 Mich. 313, 325--326, 63 N.W.2d 647 (1954).

The third issue is whether it was reversible [68 MICHAPP 723] error to allow certain exhibits to be taken into the jury room.

The general rule is that it is within the discretion of the trial court to allow exhibits to be taken into the jury room. Silverstone v. London Assurance Corp., 187 Mich. 333, 342, 153 N.W. 802 (1915). While an exhibit may be used as a testimonial aid to help the jury understand the evidence, it 'must be sponsored by a witness who uses it to relate his personal knowledge or scientific skill and understanding'. Finch v. W. R. Roach Co., 295 Mich. 589, 595, 295 N.W 324, 326 (1940). Further, where the correctness of a representation is disputed, it is for the jury to settle. Richmond v. Atkinson, 58 Mich. 413, 415, 25 N.W. 328 (1885).

In the present case, plaintiff's expert witness, an economist, testified as to the potential loss of income on the part of the plaintiff. In his testimony he assumed that the plaintiff's income could vary along the scale of potential incomes. His projections as to loss of earnings were based on the various possible future income levels of the plaintiff. All this information was summarized on two charts subsequently labeled plaintiff's exhibits 15 and 16. On direct examination the witness testified in detail as to the basis for his figures summarized on the chart. He was also cross-examined at length as to the accuracy of his projections on plaintiff's future earning capacity. It was apparent from the record that the witness sponsored the exhibits as illustrative of his expert opinion in the case. As such, the exhibits were correctly used to aid the jury. Finch v. W. R. Roach Co., supra. Further, the jury could properly determine the correctness of the projections, which were put in dispute by the defendant on cross-examination. Richmond v. Atkinson, supra. Given the complex nature of the [68 MICHAPP 724] expert's testimony and given that the charts were properly founded on his testimony, we cannot find that the trial court abused its discretion in allowing the jury to take the charts into the jury room for their deliberations. Silverstone v. London Assurance Corp., supra.

The fourth issu is whether the trial court abused its discretion in not admitting certain evidence of the plaintiff's post-accident income as it related to the plaintiff's incentive to work.

Blacha v. Gagnon, 47 Mich.App. 168, 174, 209 N.W.2d 292, 296 (1973), states:

'It is within the discretion of the trial court to admit evidence bearing on the question of whether an injured party possessed sufficient incentive to return to work.' (Citations omitted.)

The defendant sought to admit evidence of alleged interest income the plaintiff received from investing an advance payment made to him by the defendant's own insurance carrier amounting to about $1000 annually. The trial court refused to admit such evidence to the jury to show a reduced incentive to work on the part of the plaintiff. The court felt it would allow the defendant to benefit from its own act. In viewing the relatively small amount of income, the prejudicial effect on the plaintiff and the source of such income, we cannot say the trial court abused its discretion in the exclusion of this evidence.

Defendant's fifth contention on appeal is that it was error to admit a 26-year-old photograph of the plaintiff as a track star into evidence. Defendant cites no authority to support his position.

The determination of the relevancy and materiality of evidence is a matter of discretion with the trial judge. Simonetti v. Rinshed-Mason Co.,41 [68 MICHAPP 725] Mich.App. 446, 457, 200 N.W.2d 354 (1972), Lv. den., 388 Mich. 784 (1972).

The trial judge found that the photograph depicting the plaintiff as a track star sufficiently related to the issue of plaintiff's mental anguish and damages resulting therefrom to allow it into evidence. The record contains numerous references to the place that...