Dowell v. General Tel. Co. of Michigan

• Decision Date: 07 August 1978
• Docket Number: Docket No. 77-2174
• Citation: 85 Mich.App. 84,270 N.W.2d 711
• Parties: Richard DOWELL, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF MICHIGAN, a Michigan Corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 711

270 N.W.2d 711

85 Mich.App. 84

Richard DOWELL, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF MICHIGAN, a Michigan Corporation, Defendant-Appellant.

Docket No. 77-2174.

Court of Appeals of Michigan.

Aug. 7, 1978.

Released for Publication Oct. 20, 1978.

Richard H. Ebbott, Flint, for defendant-appellant.

Robert S. Ernstein, Southfield, for plaintiff-appellee.

Before D. E. HOLBROOK, P. J., and KELLY and MARUTIAK, ^* JJ.

D. E. HOLBROOK, Presiding Judge.

This Court has been asked to review a judgment entered in favor of plaintiff Richard Dowell, a journeyman lineman, against General Telephone Company of Michigan in the amount of $180,000. Plaintiff's recovery represented damages for personal injuries suffered when he fell approximately 20 feet to the ground from a telephone pole. Although the injuries to plaintiff's leg and to his back were admitted, virtually every other factual incident surrounding plaintiff's accident was disputed.

The injuries to plaintiff occurred on May 10, 1972, at which time he was a member of a three-man crew employed by Harris McBurney Company, a firm under contract with defendant company to transfer telephone cables from an existing pole to a new taller pole at the corner of M-15 and Pine Street in Otisville, Michigan. The crew provided some of its own tools and Harris McBurney provided additional tools and a vehicle. The defendant furnished materials, some specialized equipment and blueprints.

At the job site, one of plaintiff's co-workers, Hal Strange, was atop the new pole preparing to transfer cable. Plaintiff and his foreman were apparently assisting from ground level. The testimony of plaintiff and Strange varied significantly with regard to events leading up to plaintiff's fall. Depending upon whose testimony the jury chose to believe, the plaintiff either began to climb the new pole primarily to render first aid to Strange or he ascended the pole in order to assist Strange in releasing a jammed vise. Testimony also conflicts as to whether it was necessary for the plaintiff, regardless of his purpose in climbing the pole, to transfer to the older pole alongside. He testified that Strange, and the equipment with which Strange was working, precluded him from continuing his ascension on the new pole. Strange felt that although they would be crowded, he would be able to make room for the plaintiff on the new pole.

At any rate, plaintiff did attempt to cross to the old pole to continue his climb. As he was attempting this maneuver his right gaff (a climbing spike attached to the lineman's boots) failed to anchor in the old pole and he fell. Testimony as to the condition of the pole being replaced varied greatly. It was admittedly untreated cedar and soft to some extent; at one point one of the defendant's witnesses suggested it was being replaced because it was unsafe. Plaintiff claimed that it had woodpecker holes, was cracked and rotten on the outside, and that its deteriorated condition had caused his fall. For the most part, testimony of defendant's witnesses was to the effect that the pole was merely "ragged" and was not unsafe. Testimony conflicted over whether the pole was likely to have received a close inspection by defendant recently.

The foreman, who testified on behalf of defendant, tended to corroborate Strange's testimony, although he had no knowledge of many of the disputed matters. Strange had been continuously in the employ of the defendant since a few months after the accident which may have impaired his credibility.

The defendant-appellant's first allegation of error relates to the trial court's failure to deny its motion for directed verdict for failure to state a cause of action. Plaintiff proceeded on three alternative theories of negligence based on breach of defendant's duty: (1) to provide a reasonably safe place to work; (2) to provide reasonably necessary equipment to render the work safe; and (3) to warn plaintiff of existing hazardous conditions. Defendant's alleged breach of these duties was claimed to consist of its: (1) failure to Detect the dangerous condition of the old pole; (2) failure to provide the Harris McBurney crew with a so-called "bucket truck"; and (3) failure to Warn the plaintiff of the hazardous condition of the old pole.

The standard for evaluating a motion for directed verdict under GCR 1963, 515.1 is stated in the author's comments to 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 530 as follows:

"(T)he trial judge should consider all of the evidence in the record, including that which supports and that which detracts from the issue in question, and, giving the party against whom the motion for a directed verdict is made the benefit of the most favorable interpretation of the evidence as a whole and the benefit of all reasonable inferences, should direct a verdict whenever he would have the duty to set aside a contrary verdict as being against the weight of the evidence."

It is considered well-settled that:

"In considering the question whether defendant was entitled to a directed verdict, the testimony must be construed as strongly as possible in favor of the plaintiff. * * * The specific inquiry is whether this court can say, as a matter of law, giving to plaintiff's proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant's negligence and its knowledge or notice of the situation." (Citations omitted.) Cabana v. City of Hart, 327 Mich. 287, 305, 42 N.W.2d 97, 105 (1950).

Applying this restrictive standard to the instant case, we cannot say as a matter of law that the court erred in denying defendant's motion for a directed verdict. The plaintiff presented sufficient proof to support each aspect of his several alternative claims and to build a prima facie case. While much of this evidence was contradicted by defendant's witnesses, direction of a verdict under such circumstances would be a denial of the right to trial by jury. 50 C.J.S. Juries § 130, pp. 857-859. As the Court said in Schedlbauer v. Chris-Craft Corp., 381 Mich. 217, 229-230, 160 N.W.2d 889, 896 (1968):

"It seems that we must constantly remind those interested in negligence law that a motion by the defendant for a directed verdict presents no question of credibility, also that the trial judge may not select among actual or seeming contradictory statements of a witness given on direct examination and cross-examination what he believes should be applied to the motion. Instead, the movant automatically stipulates that, for the purposes of his motion only, the trial judge may and should apply the submitted evidence in that light which our reports have portrayed steadily since these passages appeared a full century ago in the Van Steinburg Case, Detroit & Milwaukee R. Co. v. Van Steinburg (1868), 17 Mich. 99, 117, 118:

" 'In determining this question, we must look at the case as it appears from the plaintiff's own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence. For the purposes of any positive instructions which one party may demand upon the evidence, he must concede all that his opponent may claim from it.' "

The plaintiff's evidence supplied a "reasonable basis for a jury finding contrary to the requested verdict". 2 Honigman & Hawkins, Supra, p. 530.

The defendant further alleges that the trial court erred by instructing the jury with regard to inherently dangerous activity, and challenging the admissibility of evidence placed on the record in this regard by plaintiff's expert witnesses. The plaintiff contended that the defendant's liability could be predicated either upon its retention of control over the operation, and consequent liability for failure to take reasonable safety precautions to protect its workmen, or, upon the defendant's nondelegable responsibility for injuries resulting from the performance of inherently dangerous tasks. McDonough v. General Motors Corp., 388 Mich. 430, 201 N.W.2d 609 (1972) and Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974).

According to 65 C.J.S. Negligence § 66, p. 944, n. 32.25: "The term 'inherently dangerous' means that type of danger which inheres in the instrumentality or condition itself at all times, thereby requiring special precautions to be taken with respect to it to prevent injury".

Whether the activity being analyzed is "inherently dangerous" is thus a question of fact to be determined by the jury. Plaintiff proffered himself and another journeyman lineman as expert witnesses: each man testified as to the hazardous elements of their employment. Although the defendant challenges their status as experts qualified to give expert testimony, it is...