Mulcahy v. Argo Steel Const. Co.

• Decision Date: 13 September 1966
• Docket Number: 620,Nos. 619,No. 1,s. 619,1
• Citation: 144 N.W.2d 614,4 Mich.App. 116
• Parties: William MULCAHY, Plaintiff-Appellee, v. ARGO STEEL CONSTRUCTION COMPANY, a Michigan corporation, and Great Lakes Wrecking Company, a Michigan corporation, Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan — District of US

Page 614

144 N.W.2d 614

4 Mich.App. 116

William MULCAHY, Plaintiff-Appellee, v. ARGO STEEL CONSTRUCTION COMPANY, a Michigan corporation, and Great Lakes Wrecking Company, a Michigan corporation, Defendants-Appellants.

Cal. Nos. 619, 620.

Court of Appeals of Michigan, Division No. 1.

Sept. 13, 1966.

Floyd S. Westcott, Jr. (of Alexander, Buchanan & Conklin) Detroit, for Argo Steel Const. Co.

Roger F. Wardle (of Davidson, Gotshall, Kelly, Halsey & Kohl), Detroit, for Great Lakes Wrecking Company.

Samuel Barr and Sanford Lakin, Detroit, for William Mulcahy.

Before LESINSKI, C.J., and QUINN and WATTS, JJ.

LESINSKI, Chief Justice.

William Mulcahy, plaintiff, filed suit against John Mahlin, Richard Steinhoff, Great Lakes Wrecking Company, Argo Steel Construction Company, Arrow Steel Company, the Detroit Edison Company, city of Detroit, and Michigan Bell Telephone Company, alleging injuries and damages resulting from an accident which occurred on April 30, 1959, at 15704 Telegraph road, Detroit, Michigan. Michigan Bell and Detroit Edison were dismissed by stipulation at the pretrial conference. Subsequently, the city of Detroit and Arrow Steel were also voluntarily dismissed by plaintiff.

In the latter part of 1958, Mahlin and Steinhoff entered into a joint venture to construct a building, on land owned by them, located at 15704 Telegraph road, Detroit, Michigan. The general contract to construct the building, entered into on March 13, 1959, was given to the Great Lakes Wrecking Company. Mahlin, in addition to being the co-owner of the land, was also president and general manager of Great Lakes Wrecking Company.

Great Lakes Wrecking contracted, by a written agreement dated March 25, 1959, with Arrow Steel to provide and erect certain steel joists and beams for the building. Thereafter, Arrow Steel hired Argo Steel to erect the steel joists and beams and put up the roof.

Plaintiff, who was also a contractor, had business dealings with Mahlin prior to the accident of April 30, 1959. On the day of the accident, plaintiff, 30 years old, visited Mahlin at 15704 Telegraph road for the purpose of discussing the construction of other buildings for Mahlin. While on the premises, Mahlin took plaintiff around the site to inspect the construction in progress.

At the time of the accident, Argo Steel had a crew of men on the premises and one of its employees was operating the crane. The crane operator was attempting to lift a steel joist into place with the crane when the boom of the crane or the joist came into contact with a power line. An arc of electricity jumped from the cab of the crane, struck the plaintiff, who was standing near the crane, in the right temple, rendered him unconscious and caused the injuries alleged for which plaintiff seeks to recover damages. The power line was approximately 20 to the west of the building and 30 in the air. This line was at a potential of about 4,100 volts to ground. A jury trial followed, and a verdict of no cause of action was rendered against Mahlin and Steinhoff. The jury found against Argo Steel and Great Lakes and awarded plaintiff $75,000 in damages. A joint judgment was granted in accordance with the jury verdict against said defendants Argo Steel and Great Lakes. Argo Steel and Great Lakes appeal from the trial court's denial of their motions for a new trial.

We shall discuss the assignments of error raised by each defendant separately, beginning with those asserted by Argo Steel.

Defendant Argo Steel claims as error the trial court's instruction, timely objected to, that plaintiff could recover on the theory of Argo Steel's negligent failure to provide electrical ground or grounds on its power crane.

Defendant Argo Steel contends that the record is void of any evidence which is supportive of said charge.

This contention is without merit in view of the testimony of Marion A. Wiley, foreman of the Argo Steel crew, who admitted the crane was not grounded, and Professor Fairchild, an expert in the field of electrical engineering, who testified that electrical grounding of power cranes would be a safety feature:

'A. Well, the grounding, first of all, is a safety path. Normally, if the electricity can't find any other place to go and it is something like water in that respect, the line, so to speak, are at one elevation, something like the falls, like a waterfalls, and here, at the top of the waterfalls we have the high potential and at the low, we have zero, and electricity, in that sense, is something like that. So that the electricity, if given any opportunity at all, will flow from the high point to the low point. And, therefore, if it has to find a path through a human being it is unfortunate but that is what happens.

'Now, to minimize the possibility of this--and I mean just what I said--to minimize the possibility of this, grounding wires are used and grounding devices are simply conductors which have more or I should say much less resistance than the human body and, therefore, the possibility of the flow through the conductor is much better than it would be through the person and that is why we say if things are properly grounded there is less likelihood for the individuals to become shocked.'

It was shown on cross-examination that Professor Fairchild had no practical experience with cranes. Such discrediting only affects the weight of the testimony; it does not eliminate the evidentiary value of such testimony. Hall v. Murdock (1897), 114 Mich. 233, 72 N.W. 150; Sitta v. American Steel & Wire Division of United States Steel Corp. (CCA 6, 1958), 254 F.2d 12.

Defendant Argo Steel further objects to the instructions relating to the negligent failure of Argo Steel to provide electrical grounding devices on its power crane on the basis that there was no evidence that Argo Steel or its employees were aware of any benefit to be derived from the use of electrical grounds. This argument is fallacious. The question that must be answered in this regard is not whether Argo Steel or its employees were aware or realized the benefits to be derived from the use of the grounding devices on the power crane, but whether or not a reasonably prudent person in the position of Argo Steel, would have realized the benefits of grounding devices and equipped the power crane with such devices. This is a question of fact for the jury to be determined from the evidence. Frederick v. City of Detroit, Dept. of Street Railways (1963), 370 Mich. 425, 121 N.W.2d 918; Northern Oil Co. v. Vandervort (1924), 228 Mich. 516, 200 N.W. 145.

Error is also assigned by Argo Steel to the trial court's refusal to exclude from evidence certain mortality tables. Argo Steel contends in support of this assignment of error that there were no proofs of permanent injury or damages and that the proofs suggest that plaintiff was not a healthy individual prior to and at the time of the accident in question.

The rule of general application in this state is that mortality tables are inadmissible in a suit for personal injuries unless it appears that the injuries are of a permanent nature. Mott v. Detroit, G.H. & M.R. Co. (1899), 120 Mich. 127, 79 N.W. 3; Leach v. Detroit Electric Railway (1900), 125 Mich. 373, 84 N.W. 316.

Plaintiff testified that his suffering and his disability were still continuing some four years after the injury. Plaintiff's testimony, coupled with the medical testimony of Dr. Bohn, a neurologist and psychiatrist, that plaintiff suffered from posttraumatic psychoneurosis caused by the accident and such a condition was chronic in nature and could last into the future, was sufficient evidence of a permanent injury to take the case to the jury on this issue. Prince v. Lott (1963), 369 Mich. 606, 120 N.W.2d 780.

Plaintiff's testimony, coupled with that of Dr. Bohn, from which an inference could be drawn that plaintiff's injuries were permanent in nature, was sufficient to warrant the admission of the mortality tables in evidence. In Norris v. Detroit United Railway (1916), 193 Mich. 578, 582, 583, 160 N.W. 574, 575, the Court wrote:

'If * * * it had appeared that there was any dispute about the question of whether or not the plaintiff was an ordinarily healthy woman, then that question would have been for the jury, and the mortality tables would be admissible for them to use if they should find that she was an ordinarily healthy woman.'

Defendant Argo Steel claims that the following instructions are erroneous:

'If plaintiff is entitled to recover, if he has shown himself entitled under the facts and the law, the facts as you find them, the law as the judge gives it to you, he is entitled to recover all damages which he has suffered up to the time of this trial and for all damages which it is Reasonably probable will be sustained in the future. (Emphasis supplied.)

'Similarly, ladies and gentlemen, I charge you that if you consider any allowance of damages for the future these must have been established with reasonable certainty by competent medical testimony. You cannot bring in a verdict in this case for permanent injury unless you find it has been established by competent medical testimony that there is a reasonable probability of such permanent injury.'

Argo Steel objects to the use of the phrase 'reasonably probable' as being ambiguous and as having a tendency to confuse the jury as to the proofs necessary to find that plaintiff suffered a permanent injury.

We will not consider the prejudicial effect of such instruction in view of Argo Steel's failure to object to the above instructions and call to the trial court's attention any ambiguity in the charge. GCR 1963, 516.2. See, also, Salvatore v. City of Harper Woods (1963) 372 Mich. 14, 124 N.W.2d 780; Muccio v. Severini (1965), 374 Mich. 189, 132 N.W.2d 172.

Defendant Argo Steel charges error in the trial court's failure to instruct the jury in accordance with its requests which read:

'I further charge you that you may not...