Klein v. Detroit Metallic Casket Co.
| Decision Date | 10 March 1953 |
| Docket Number | No. 23,23 |
| Citation | 336 Mich. 157,57 N.W.2d 477 |
| Parties | KLEIN v. DETROIT METALLIC CASKET CO. et al. |
| Court | Michigan Supreme Court |
Howlett & Hartman, Pontiac, for appellants.
Smith & Wilson, Pontiac, for appellee.
Before the Entire Bench.
The plaintiff, a funeral director of Birch Run, Michigan, was injured on the morning of February 24, 1949, while assisting the defendant, Olin Cornell, in the unloading of a 200-pound metal casket from the truck of the defendant, Detroit Metallic Casket Company. The casket had been purchased from the defendant company and Cornell, the driver of the truck, was making the delivery.
At the time, there were 7 caskets on the truck and the particular casket to be delivered to the plaintiff was on the top tier approximately 5 1/2 feet above ground level. At Cornell's request, the 2 of them slid the casket to the rear of the truck in order that they could lift it off and place it on the ground. While in the process of lifting the casket from the truck it fell, striking and fracturing plaintiff's right leg.
Plaintiff brought suit for damages in the Oakland county circuit court claiming that the injury was caused through the negligence of Cornell and upon trial before a jury he had a verdict for $5,000. Defendants contended at the trial that plaintiff had shown no negligence on their part and that plaintiff himself was guilty of contributory negligence not only in his actions at the time of the accident but also in voluntarily placing himself in a place of danger. For these reasons, defendants moved for a directed verdict at the close of the plaintiff's case and again at the close of the defendants' case. Subsequently, and for the same reasons, defendants moved for judgment notwithstanding the verdict and for a new trial.
All of the defendants' motions were denied by the trial judge, the denial of the motion for the new trial being conditioned upon plaintiff's remitting $2,500 of the verdict. This condition was imposed because the court was of the opinion that the proof of damages did not justify the larger verdict. Plaintiff filed the remittitur and defendants then took this appeal from the order denying the new trial and from the judgment entered for the plaintiff.
Only three persons saw the accident. Plaintiff and defendant Cornell were at the immediate scene and plaintiff's wife watched from a window of their nearby home. Plaintiff testified that he stood at the left side of the truck and that
He admitted, however, that as he lifted his view was obstructed by the casket and he could not see Cornell's arms and shoulders during the operation.
Mrs. Klein watching from the window could not see Cornell's body, although she could see both her husband and the casket and testified that after the casket had been moved to the rear of the truck and was about to be lowered by the 2 men, it 'gave a lunge.'
Defendant Cornell disputed this testimony saying that for some unexplainable reason the casket fell away from him as it left the truck and that he was not in a position to stop its movement. Defendants argue that because neither Mr. nor Mrs. Klein were in a position to adequately observe Cornell's actions, his testimony of what he did at the time of the accident must be accepted as undisputed fact and that since his testimony showed no negligence on his part, plaintiff had failed in his proofs.
We cannot agree with the defendants in this respect. The mere fact that plaintiff could not see all of defendant's body at the moment the accident...
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...Hunter v. Baldwin, 268 Mich. 106, 255 N.W. 431; Kavigian v. Lonero, 312 Mass. 603, 45 N.W.2d 823. See, also, Klein v. Detroit Metallic Casket Company, 336 Mich. 157, 57 N.W.2d 477.' In Johnson v. E. C. Clark Motor Co. (1912), 173 Mich. 277, 289, 139 N.W. 30, 34, 44 L.R.A.,N.S., 830, Justice......
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...the theory that a plaintiff should not be allowed to recover for an injury of which he is partly the cause. Klein v. Detroit Metallic Casket Co., 336 Mich. 157, 57 N.W.2d 477 (1953). Contributory negligence can be quite harsh if the negligence of the defendant is relatively great compared w......
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...Hunter v. Baldwin, 268 Mich. 106, 255 N.W. 431; Kavigian v. Lonero, 312 Mass. 603, 45 N.E.2d 823. See, also, Klein v. Detroit Metallic Casket Company, 336 Mich. 157, 57 N.W.2d 477. The conclusions reached with reference to the issues above discussed render it unnecessary to consider other q......
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...are more than ample to present that affirmative defense to established negligent acts.' In the case of Klein v. Detroit Metallic Casket Co. (1953), 336 Mich. 157, 57 N.W.2d 477, which involved a plaintiff who was injured assisting a truck driver unload a casket from the truck, the defendant......