Finch v. W. R. Roach Co.

• Decision Date: 08 December 1941
• Docket Number: No. 82.,82.
• Citation: 299 Mich. 703,1 N.W.2d 46
• Parties: FINCH v. W. R. ROACH CO.
• Court: Michigan Supreme Court

299 Mich. 703

1 N.W.2d 46

FINCH

v.W. R. ROACH CO.

No. 82.

Supreme Court of Michigan.

Dec. 8, 1941.

Action by Guy Finch against W. R. Roach Company for personal injuries.Judgment was entered for plaintiff, and from the denial of a motion for new trial, defendant appeals.

Affirmed.

NORTH, SHARPE, and WIEST, JJ., dissenting.Appeal from Circuit Court, St. Clair County; Fred W. George, judge.

Argued before the Entire Bench.

L. J. Carey and George J. Cooper, both of Detroit (Eugene F. Black, of Port Huron, of counsel), for appellant.

Miles K. Benedict and Walsh, Walsh & O'Sullivan, all of Port Huron, for appellee.

CHANDLER, Justice.

This case has been before this court on a former occasion and is reported in 295 Mich. 589, 295 N.W. 324, wherein two opinions were filed, and where the facts were gone into in much detail.The appeal there was from a judgment for defendant entered by the trial court notwithstanding the verdict rendered by the jury in favor of plaintiff.

That the facts and the legal principles applicable thereto were thoroughly reviewed and considered by this court is evidenced by two carefully prepared opinions reported in 295 Mich. 589, 295 N.W. 324, supra.

The judgment of the trial court above referred to was reversed, and the cause was remanded to the Circuit Court for the County of St. Clair for entry of judgment on verdict of jury as rendered.

After this decision an application for a rehearing was filed by defendant, and after due consideration by this court was denied on February 7, 1941.

After entry of judgment for plaintiff on verdict of the jury in accordance with our directions, defendant filed with the trial court a motion for an order setting aside the verdict and judgment and granting a new trial of the cause for the following reasons:

‘1.The verdict was contrary to the clear weight of the evidence in that the proofs overwhelmingly showed, despite the guesses and estimates of plaintiff's witnesses, that the ladder from which plaintiff fell differed radically and vitally from plaintiff's model ladder.

‘2.The verdict was contrary to the clear weight of the evidence in that the proofs overwhelmingly showed that plaintiff, in setting up and using the ladder as he did, was guilty of contributory negligence.

‘3.The verdict was contrary to the clear weight of the evidence in that the proofs overwhelmingly showed that plaintiff, at the time he was injured, was an independent contractor instead of an invitee and that he accordingly possessed no right of recovery for and on account of the theory and allegations of negligence that are set forth in his declaration.’

On May 14, 1941, the trial judge filed a ‘combined opinion and order denying motion for new trial,’ which follows: ‘This matter comes before the Court on a motion for a new trial and due consideration has been given to the arguments and briefs of counsel.In as much as the Supreme Court of Michigan has held that the issues were properly submitted to the jury, the motion of defendant, W. R. Roach and Company, is hereby denied.’

On May 16, 1941, the trial judge filed a ‘supplemental opinion on defendant's motion for new trial’: ‘The Court having heretofore rendered a finding denying defendant's motion for a new trial and having inadvertently omitted reference to the four grounds and reasons for a new trial urged by the defendant, and the Court having given due consideration thereto and as a supplement to the previous opinion of this Court, the Court does hereby find that the verdict of the jury was not overwhelmingly against the weight of evidence on any of the four grounds set forth in defendant's motion.’

From this denial of its motion for a new trialdefendant appeals, and assigns error on the part of the trial court in the following particular:

‘1.The Trial Court erred in denying defendant's motion for new trial for assigned reason that the verdict was contrary to the clear weight of evidence in that the proofs overwhelmingly showed, despite the guesses and estimates of plaintiff's witnesses, that the ladder from which plaintiff fell differed radically and vitally from plaintiff's model ladder.

‘2.The Trial Court erred in denying defendant's motion for new trial for assigned reason that the verdict was contrary to the clear weight of the evidence in that the proofs overwhelmingly showed that plaintiff, in setting up and using the ladder as he did, was guilty of contributory negligence.

‘3.The Trial Court erred in denying defendant's motion for new trial for assigned reason that the verdict was contrary to the clear weight of evidence in that the proofs overwhelmingly showed that plaintiff, at the time he was injured, was an independent contractor instead of an invitee and that he accordingly possessed no right of recovery for and on account of the theory and allegations of negligence that are set forth in his declaration.’

‘4.(The fourth assignment of error was abandoned by appellant on the oral argument of this case.)’

We deem it unnecessary to discuss the third question.It is without merit.The record conclusively establishes the fact that plaintiff was on the premises, and in performance of the acts that resulted in his injuries as an invitee of defendant.

Before discussing defendant's remaining grounds of appeal, questions one and two, we wish to call attention to the special questions submitted to the jury by request of defendant, and the answers of the jury thereto:

‘First Question: Is each juror convinced by a preponderance of evidence that the platform of the model ladder brought into court by plaintiff is the same size within practical limits as the platform of the ladder which is pictured by the photographs, Exhibit 1 to 5?

‘Answer: Yes.

‘Second Question: Is each juror convinced by a preponderance of evidence that plaintiff fell from a ladder identical within practical limits with the model he brought into court as to height, platform size and angle between platform and stiles?

‘Answer: Yes.

‘Third Question: Did plaintiff fall from a ladder identical within practical limits as to height, platform size and angle between platform and stiles with the one pictured by the photographs, Exhibits 1 to 5?

‘Answer: Yes.

‘Fourth Question: Was plaintiff in setting up whatever ladder he used and in picking cherries while standing on the top platform thereof entirely free from negligence that caused or concurred in causing his injuries?

‘Answer: Yes.’

We believe what we said in the majority opinion in Finch v. W. R. Roach Company, supra, 295 Mich. on page 598, 295 N.W. on page 327, is applicable here: ‘We are much impressed with defendant's claim that, despite the verdict of the jury, the tipping of the ladder resulted from plaintiff's own carelessness, but we are constrained to hold that the issue was properly submitted to the jury.It is our province as judges to determine whether there is room for the verdict, and at this point our inquiry must end, even though as triers of the facts we would be impelled to reach a contrary conclusion.From the evidence of the experts that there was a latent defect in the construction of the ladder supplied plaintiff, we cannot say as a matter of law that the circumstances were such that plaintiff was bound to anticipate or discover that there was or might be any such defect in the short time he was to use the article.At least there was room for the jury to find that plaintiff exercised the degree of care required of him for his own safety.Etel v. Grubb, 157 Wash. 311, 288 P. 931.The cases of Kelley v. Brown, 262 Mich. 356, 247 N.W. 900, andNichols v. Bush, 291 Mich. 473, 289 N.W. 219, do not support defendant's contention that plaintiff was contributorily negligent as a matter of law.In neither case was there any proof of negligence on the part of defendant in supplying an improperly designed or out-of-repair ladder.Where there is such evidence of defendant's negligence, and the circumstances are such that the infirmities are not readily discoverable, the question of the user's contributory negligence may properly be submitted to the jury.Etel v. Grubb, supra.’

We said in Crippen v. Chatterton, 228 Mich. 532, 200 N.W. 163, 164: ‘Since the enactment of this provision [3 C.L. 1929, sec. 14314,Stat.Ann. 271043]this court has carefully avoided usurping the functions of the jury and setting aside verdicts solely because they do not comport with our views of what they ought to be, and we have reversed cases under this statute only in those cases where the verdict is so manifestly against the overwhelming weight of the evidence as that the decision of the trial judge denying the motion for a new trial amounts to an abuse of discretion.But, where the verdict is clearly against the overwhelming weight of the evidence, our duty is clear, and we have never shirked it, even though it was exacting and disagreeable.’

Counsel for appellant has not discussed what consideration, if any, should be given to the special questions submitted to the jury and the answers of the jury thereto.These questions hereinbefore quoted were submitted to the jury by the court upon request of defendant.They were plain and unambiguous and called for...