Cody v. Marcel Elec. Co.

Decision Date19 October 1976
Docket NumberDocket No. 25076
Citation248 N.W.2d 663,71 Mich.App. 714
PartiesWilliam CODY, Plaintiff-Appellant, and Liberty Mutual Insurance Co., Intervening Plaintiff-Appellant, v. MARCEL ELECTRIC CO., a Michigan Corporation, Defendant-Cross-Plaintiff-Appellee, and Allen-Bradley Co., a Foreign Corporation, Defendant-Cross-Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Goldsmith, Yaker & Goldsmith by Daniel S. Goldsmith, Troy, for cody.

Johnson, Campbell & Moesta by Reginald S. Johnson, Detroit, for Liberty.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy by Richard J. Tonkin, Detroit, for Marcel.

Harvey, Kruse & Westen by Ronald E. Westen, Detroit, for Allen-Bradley.

Before GILLIS, P.J., and T. M. BURNS and VanVALKENBURG, * JJ.

T. M. BURNS, Judge.

Plaintiff William Cody was injured while operating a press in his job with Iroquois Tool & Die Company. At the trial of plaintiff's suit against persons responsible for the manufacture and installation of certain parts of the press, the trial judge directed a verdict for defendant Marcel Electric Company on a negligence count and the jury returned a verdict of no cause of action in favor of both defendants Allen-Bradley Company and Marcel Electric on the remaining counts. Both plaintiff and intervenor 1 appeal these verdicts as a matter of right.

Plaintiff alleged that the electrical relay system installed on the press he was operating malfunctioned and caused the press to unexpectedly close on his hand, resulting in severe injuries. The relays were manufactured by Allen-Bradley and installed by Marcel Electric. The relays were installed in January, 1970, and the accident occurred in May, 1972. Defendants maintained that the accident was caused by the negligence of Iroquois Tool & Die. It was claimed that Marcel Electric had installed palm buttons to operate the press but that Iroquois had subsequently replaced the palm buttons with a foot pedal.


Plaintiff contends that the trial court erred reversibly in granting defendant Marcel Electric's motion for a directed verdict on the negligence count. He argues that the evidence was sufficient to submit the question of negligence to the jury. The defendants argue that there was no affirmative evidence on the record to show that defendant Marcel Electric was negligent and, therefore, the trial court correctly directed a verdict.

Directed verdicts, particularly in negligence cases, are viewed with disfavor. When a fact question is presented upon which reasonable persons could reach differing conclusions, the trial judge may not take the question from the jury. In deciding whether the trial court erred in entering a directed verdict, we review all the evidence presented to determine whether a question of fact existed. In so doing, we view the evidence in a light most favorable to the nonmoving party, granting him every reasonable inference and resolving any conflict in the evidence in his favor. If the evidence viewed in this manner establishes a prima facie case, we must reverse the trial court's grant of a directed verdict. Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975).

The status of the evidence presented below makes the issue before us difficult to resolve. We recognize that the trial judge was faced with a close question in deciding on the motion for a directed verdict. Our review of the evidence and study of the applicable law, however, persuades us that the directed verdict should not have been entered.

There was no direct proof of negligence on the part of Marcel Electric, but the plaintiff did present a prima facie case. Evidence was offered to show that:

1. Marcel Electric installed the electrical system, including the relay system wiring.

2. After the accident it was discovered that the 'fail-safe' system had been inoperative because of improper wiring.

3. All Iroquois Tool personnel who might have worked on the machine after its installation denied having altered the wiring.

On the other hand, evidence was offered to show that:

1. Marcel Electric had not worked on the machine between the date of installation and the date of the accident--a period of over two years.

2. Iroquois Tool had access to the wiring system and had in fact altered a different part of the wiring after its installation.

The evidence presented by the plaintiff constituted a showing of negligence based upon inference. Evidence was introduced by Marcel Electric to rebut the inference of negligence. The only remaining question was which side was more believable, an issue only the jury could resolve.

"It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich. 283, 53 N.W. 938; Redmond v. Delta Lumber Co., 96 Mich. 545, 55 N.W. 1004. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other.'

"Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich. 607, 613, 19 N.W. 549, Barnowsky v. Helson, 89 Mich. 523, 50 N.W. 989. And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff's theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Detroit, G.H. & M.R. Co., 58 Mich. 458, 25 N.W. 463; Hagan v. Chicago, D. & C.G.T.J. Railroad Co., 86 Mich. 615, 49 N.W. 509; Woods v. Chicago & G. T. Railway Co., (Mich.) 108 Mich. 396, 66 N.W. 328." Schedlbauer v. Chris-Craft Corp., 381 Mih. 217, 230--231, 160 N.W.2d 889 (1968), quoting from Schoepper v. Hancock Chemical Co., 113 Mich. 582, 586, 589, 71 N.W. 1081 (1897).

The trial court erred in entering a directed verdict for Marcel Electric on the negligence count.


While instructing the jury on the plaintiff's theories of liability, the trial judge made repeated reference to 'the' proximate cause of the plaintiff's injuries as well as 'a' proximate cause. Plaintiff is correct in arguing that the trial judge erred in speaking of 'the' proximate cause. Barringer v. Arnold, 358 Mich. 594, 101 N.W.2d 365 (1960). But we do not find that the judge instructed the jury that it could only find a defendant liable if it was the sole proximate cause of the accident. In fact, the judge correctly recited SJI 15.02 and 15.03:

'When I use the word approximate cause I mean first, that there must have been a connection between that conduct of the defendant which plaintiff claims was negligent and the injury complained of by the plaintiff, and second, that the occurrence which is claimed to produce that injury was a natural and probable result of such conduct of the defendant. When I use the word proximately contributed I mean first, that there must have been a connection between that conduct of the plaintiff which defendant claims was negligent and the injury of which this plaintiff complains, and second, that the occurrence again which is claimed to have produced the injury was a natural and probable result of such conduct of the plaintiff. There may be more than one proximate cause. To be a proximate cause, they claimed negligence of the defendants need not be the only cause nor the last cause. A cause may be proximate although it and other cause act at the same time or in combination to produce the occurrence.' (Emphasis added.)

Reading the instructions as a whole, we conclude that the error was harmless. The jury was clearly instructed that there may be more than one proximate cause and that if a defendant's conduct is a proximate cause of the accident, he is liable. Given this explicit instruction, the isolated references to 'the' proximate cause were of little consequence. The plaintiff was not unduly prejudiced by these inadvertent errors.


In his instructions to the jury on plaintiff's theory of...

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22 cases
    • United States
    • Court of Appeal of Michigan — District of US
    • 19 December 2000
    ...supra.5 The dissent contends that the omission of the word "ordinary" requires reversal. We disagree. In Cody v. Marcel Electric Co., 71 Mich.App. 714, 720-721, 248 N.W.2d 663 (1976), the plaintiff alleged that the omission of the word "necessarily" from the instruction regarding the plaint......
  • Tomei v. Bloom Associates, Inc.
    • United States
    • Court of Appeal of Michigan — District of US
    • 17 May 1977
    ...The trial court acted properly within its discretion in giving proper instructions in its own manner. Cody v. Marcel Electric Co., 71 Mich.App. 714, 248 N.W.2d 663 (1976). It is often preferable for the trial court to give the substance of the requested charges in a clear and well-connected......
  • Rick v. RLC CORP., Civ. No. 9-73305.
    • United States
    • U.S. District Court — Western District of Michigan
    • 16 December 1981
    ...Mich.App. 84, 270 N.W.2d 711 (1978); Beamon v. City of Highland Park, 85 Mich.App. 242, 271 N.W.2d 187 (1978); Cody v. Marcel Electric Co., 71 Mich.App. 714, 248 N.W.2d 663 (1976); Taft v. J. L. Hudson Co., 37 Mich. App. 692, 195 N.W.2d 296 This Court notes that the Sixth Circuit has conclu......
  • Ellsworth v. Hotel Corp. of America
    • United States
    • Court of Appeal of Michigan — District of US
    • 1 October 1999 impeachment when the opposing party has denied making a repair. Id., at 690, 387 N.W.2d 388; Cody v. Marcel Electric Co., 71 Mich.App. 714, 722-723, 248 N.W.2d 663 (1976); Little v. Borman Food Stores, Inc., 33 Mich.App. 609, 611-614, 190 N.W.2d 269 (1971). The contradictory evidence may......
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