Dobbek v. Herman Gundlach, Inc., Docket Nos. 3124
| Decision Date | 26 September 1968 |
| Docket Number | No. 3,Docket Nos. 3124,3197,3 |
| Citation | 164 N.W.2d 685,13 Mich.App. 549 |
| Parties | John T. DOBBEK and Marion Dobbek, Plaintiffs-Appellees, v. HERMAN GUNDLACH, INC., White Pine Copper Company, and Jesse Trousil, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Norman McLean, Houghton, for Herman Gundlach, Inc.
Humphrey & Weis, Ironwood, for White Pine and another.
Walsh & Munro, Ontonagon, for appellee.
Before FITZGERALD, P.J., and GILLIS and McGREGOR, JJ.
White Pine Copper Company owns and operates a copper mine and smelting plant. This action derives from a personal injury suffered in an accident which occurred on March 10, 1964, in a three-level pumphouse operated by White Pine, which engaged various prime contractors for the purpose of improving its facilities, especially the pumphouse, with the prime contracts being extensively subcontracted. John T. Dobbek (hereinafter referred to as plaintiff) worked as a pipefitter and plumber for one of the subcontractors, and in 1963 his gross income was $8,415. Occasionally in the work on the pumphouse, heavy pumps were lowered from the top level by a permanently installed overhead crane. During the period from approximately 4:30 p.m. on March 9, 1964, to 8 a.m. on March 10, 1964, the pumphouse was solely and exclusively occupied by employees of the White Pine Copper Company, including Jesse Trousil, the pumphouse operator. Employees of defendant Herman Gundlach, Inc., a prime contractor on a different project in the pumphouse, used the overhead crane on March 9th for lowering materials with the guardrail removed. Dobbek did not participate in this removal of the guardrail, but there is evidence that on the preceding late afternoon, he observed its removal while in the pumphouse preparing for the installation of the large check valve.
The needed check valve arrived at the pumphouse on March 10, 1964, and Dobbek made arrangements for its immediate installation. The use of the overhead crane was necessary to move the heavy valve, and defendant Trousil offered to assist the plaintiff. Dobbek walked around the end of the railing and on to a pipe located 5 8 below the top rail. Testimony indicated that the main work area from which the normally-used stairway descends to the lower level was cluttered with various materials and tools. Trousil told Dobbek to go below and that he, Trousil, would lower the check valve. Dobbek, intending to guide the valve through the maze of pipes, stepped around the end of the railing on to a 24-inch pipe and attempted to position himself to guide the check valve down to the lower level. In doing so, Dobbek leaned toward the guardrail for support and balance; the unbolted guardrail dislodged, causing Dobbek to lose his balance and fall about 8 feet to a steel grate catwalk. Later the same day, the section of pipe which had dislodged was found to contain no securing bolts. Testimony disclosed that the bolts had been removed from the railing on the previous afternoon.
The complaint alleges that employees of Gundlach Company removed the railing on the morning of March 10, 1964, replaced the railing but failed to replace the bolts and to warn the plaintiff about their failure. This statement conflicts with the deposition taken from the plaintiff. Little evidence was produced to substantiate these allegations of the complaint. In the discovery deposition, taken on September 11, 1965, the plaintiff testified under oath that he did not see who had removed the bolts or the railing on the date of the accident. In an affidavit dated March 22, 1965, Dobbek accused Robert Barrette, a Gundlach employee, of removing both end bolts from the hand rail. At trial, plaintiff testified that he saw Barrette remove only one bolt.
Defendant Gundlach Company contends that using plaintiff's version most damaging to Gundlach and considering it in a light most favorable to plaintiff Dobbek, a reasonable mind would conclude that plaintiff saw Barrett creating a dangerous condition by removing a bolt from the pipe rail; that plaintiff then knew or should have known that leaving a railing which was removable and unbolted on one end constituted danger from which injury might reasonably be anticipated; that plaintiff was totally forgetful and inattentive to the situation; that plaintiff voluntarily continued to ignore the circumstances when he was in the premises the following morning, thereby contributing to his own fall and endangering the safety of defendant Trousil; that an ordinarily prudent person would not have totally disregarded the situation if it was...
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