Snider v. Jennings, Docket No. 3827

• Court: Court of Appeal of Michigan
• Writing for the Court: BURNS
• Citation: Snider v. Jennings, 161 N.W.2d 594, 11 Mich.App. 562 (Mich. App. 1968)
• Decision Date: 29 May 1968
• Docket Number: Docket No. 3827,No. 3,3
• Parties: Mary E. SNIDER; and Mary E. Snider, Guardian of Scott Andrew Snider, a minor, Plaintiffs-Appellants, v. Marcus JENNINGS, Individually and d/b/a Jennings Mobile Home Sales, Defendants-Appellees

Page 594

161 N.W.2d 594

11 Mich.App. 562

Mary E. SNIDER; and Mary E. Snider, Guardian of Scott Andrew Snider, a minor, Plaintiffs-Appellants, v. Marcus JENNINGS, Individually and d/b/a Jennings Mobile Home Sales, Defendants-Appellees.

Docket No. 3827.

Court of Appeals of Michigan, Division No. 3.

May 29, 1968.

Released for Publication Oct. 24, 1968.

Robert L. Miles, Big Rapids, for appellant.

Worcester, Worcester & Schinderle, Big Rapids, for appellee.

Before BURNS, P.J., and QUINN and FREDERICK C. ZIEM, ^* JJ.

BURNS, Presiding Judge.

Plaintiffs appeal from judgments entered upon jury verdicts of no cause of action. Scott Snider, 2 years of age, lived with his mother, Mary Snider, in a house trailer located in a trailer court which was owned and operated by defendant. Defendant provided a laundry room on the premises for the use of the tenants. While Mary Snider and a 13 year old girl were busy loading clothes in an extractor, Scott went behind an automatic dryer and stuck his hand into a service door used to observe the operation and maintenance of the motor. As a result the child suffered injuries to 2 fingers, 1 of which had to be partially amputated. Although the defendant testified that in his opinion the door could not have been opened by a 2 year old child, there was no testimony indicating how the service door was opened.

Plaintiffs claim the trial court erred by instructing the jury that contributory negligence by the parent would bar recovery by the parent. It is not necessary for the Court to rule on this particular charge. It is settled law that a child of such tender years as Scott Snider cannot be held contributorily negligent, and the trial court so instructed the jury. Therefore, the no cause of action verdict against Scott Snider could only mean one thing: the defendant was free from negligence. The main action having failed, Mary Snider's individual derivative action must also fail. See Dewey v. Perkins (1940), 295 Mich. 611, 295 N.W. 333; Morrison v. Grass (1946), 314 Mich. 87, 22 N.W.2d 82; Bias v. Ausbury (1963), 369 Mich. 378, 120 N.W.2d 233.

During the trial the judge allowed the jury to view the scene of the accident. One aspect of appellants' assignment of error regarding this particular suggests that counsel should have accompanied the jury and the sheriff to the scene. The absence of counsel and judge is of harmless consequence because, even if present, they could say nothing. No person other than the officer designated by the court shall speak to the jury concerning any subject connected with the trial. GCR 1963, 513. Appellants further claim, however, that the conditions of the scene had changed to their prejudice. Before viewing the premises, the jury had heard defendant testify upon cross-examination that he had installed a board in such a manner so as...