Vanden Bosch v. Consumers Power Co.

• Decision Date: 25 November 1974
• Docket Number: No. 3,F--C,Docket No. 16177,3
• Parties: Martin VANDEN BOSCH and Dena Vanden Bosch, Plaintiffs-Appellants, v. CONSUMERS POWER COMPANY, Defendant-Appellee and Cross-Appellant, and Ferro-Cast Corporation, a/k/a OttawaCorporation, Defendant-Appellee and Cross-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 900

224 N.W.2d 900

56 Mich.App. 543

Martin VANDEN BOSCH and Dena Vanden Bosch, Plaintiffs-Appellants, v. CONSUMERS POWER COMPANY, Defendant-Appellee and Cross-Appellant and Ferro-Cast Corporation, a/k/a Ottawa F--C Corporation Defendant-Appellee and Cross-Appellee.

Docket No. 16177.

Court of Appeals of Michigan, Division No. 3.

Nov. 25, 1974.

Released for Publication Jan. 17, 1975.

Dale R. Sprik, Rhoades, McKee & Boer, Grand Rapids, for plaintiffs-appellants.

Warner, Norcross & Judd, Grand Rapids, for Consumers.

Cholette, Perkins & Buchanan, Grand Rapids, for Ferro-Cast.

Before ALLEN, P.J., and R. B. BURNS and T. M. BURNS, JJ.

T. M. BURNS, Judge.

On January 11, 1967, plaintiff Martin Vanden Bosch was working in the course of his employment for Bouwens Construction Company on the premises of defendant Ferro-Cast Corporation near Zeeland, Michigan. Plaintiff and another man were building an addition to Ferro-Cast's plant and at the time in question, they were putting up the steel framework of the building.

The joists (main braces) had already been put up, and plaintiff was installing approximately 18- feet-long reinforcement rods through the joists to tie them together. Plaintiff was on a wooden ladder taking the rods from his co-worker and threading them through the joists.

Plaintiff was installing the rods by the top method, which consisted of running the rod up between the joists and over the roof before bringing it back down through the joists. Plaintiff and his co-worker had been installing these rods in this manner the morning of the accident.

Some time during the day, one of the rods plaintiff was handling while standing on the ladder came into contact with a 46,000 volt power line owned by defendant Consumers Power Company (hereinafter referred to as Consumers) which crossed over the new addition being constructed. Plaintiff was knocked off the ladder and fell to the ground below, sustaining serious burns and other injuries.

On January 8, 1970, plaintiffs filed this suit against both defendants alleging negligence which resulted in plaintiff Martin Vanden Bosch's coming into contact with the power line. Defendants denied negligence and asserted that Martin was contributorily negligent. On April 1, 1971, defendant Consumers filed a cross-complaint against defendant Ferro-Cast, asserting an indemnification contract between the two parties in which Ferro-Cast allegedly agreed to hold Consumers harmless from loss.

Trial was held before an Ottawa County jury from October 3 to October 6, 1972. The evidence presented at trial conflicted on two important points: (1) whether or not Vanden Bosch was ever warned of the dangerous wires, and (2) whether or not Vanden Bosch had seen the dangerous wires. After a full trial on the merits, the jury rendered a unanimous verdict against both defendants in the amount of $80,000--$75,000 for plaintiff Martin Vanden Bosch and $5,000 for his wife.

Both defendants then moved for judgment notwithstanding the verdict on the ground that Vanden Bosch was contributionarily negligent as a matter of law, or in the alternative for a new trial. In an opinion dated December 27, 1972, the lower court granted defendants' motions for judgment notwithstanding the verdict and also held that if the judgment notwithstanding the verdict was reversed on appeal, the defendants were entitled to a new trial because the jury verdict was contrary to the great weight of the evidence and for the further reason that sufficient prejudice tainted the verdict. The court also found that the indemnification agreement did not apply to protect Consumers in this case. Judgment was entered accordingly against plaintiffs and in favor of defendants on January 8, 1973.

Plaintiffs appeal as of right from the judgment notwithstanding the verdict entered in favor of defendants and further appeal the court's order granting defendants a new trial. Defendant Consumers cross-appeals as of right the trial court's holding that it (Consumers) was not protected by the Indemnification contract.

1. DID THE TRIAL COURT ERR IN GRANTING DEFENDANTS' MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE GROUND THAT PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT AS A MATTER OF LAW?

Summary dispositions of negligence cases are to be employed only in the clearest cases. Schulte v. Detroit Edison Co., 50 Mich.App. 326, 213 N.W.2d 311 (1973); Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970). In reviewing a lower court's judgment granting a defendant's motion for judgment notwithstanding the verdict, this Court must view the facts and all legitimate inferences therefrom in the light most favorable to the plaintiff. Schulte v. Detroit Edison Co., Supra; Gronlie v. Positive Safety Manufacturing Co., 50 Mich.App. 109, 212 N.W.2d 756 (1973); Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 189 N.W.2d 208 (1971); Kroll v. Katz, 374 Mich. 364, 132 N.W.2d 27 (1965).

In Garmo v. General Motors Corp., 45 Mich.App. 703, 708--709, 207 N.W.2d 146, 149 (1973), we said:

'We agree with defendant that appellate review of a judgment notwithstanding the verdict should encompass all the proofs adduced at trial and not just plaintiff's. Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 371, 189 N.W.2d 208 (1971); Kasza v. Detroit, 370 Mich. 7, 11, 120 N.W.2d 784 (1963). However, as stated in Taft v. J. L. Hudson Co., 37 Mich.App. 692, 698, 195 N.W.2d 296 (1972):

"If, when so viewed, there is any evidence which was competent and sufficient to support the jury's determination, said determination should not be disturbed."

The test for contributory negligence in cases where a plaintiff comes in contact with an electric wire is whether or not he voluntarily and deliberately placed himself in a position known to him to be dangerous. See Kratochvil v. City of Grayling, 367 Mich. 682, 687, 117 N.W.2d 164 (1962); Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113, 118--119, 190 N.W. 759 (1922).

In the instant case, the trial court granted defendants' motions for judgment notwithstanding the verdict primarily because of its belief that plaintiff had seen or should have seen the wires before the accident. Therefore, since he failed to take proper precautions, the trial court felt that plaintiff was contributorily negligent as a matter of law. However, recent decisions of this Court have held that even where a plaintiff is aware or was previously aware of a danger, his action in forgetting or ignoring the danger is not contributory negligence as a matter of law. Ray v. Transamerica Insurance Co., 46 Mich.App. 647, 655, 208 N.W.2d 610 (1973); Mackey v. Island of Bob-Lo Co., 39 Mich.App. 64, 66 197 N.W.2d 151 (1972); Pigg v. Bloom, 22 Mich.App. 325, 177 N.W.2d 441 (1970).

In Ray, we stated, 46 Mich.App. at page 655, 208 N.W.2d at page 614:

'Aside from defendant's other assignments of error, it suggests that plaintiff was contributorily negligent as a matter of law in failing to tell anyone about the missing gear cover. We hold awareness of the danger is not by itself sufficient for a finding of contributory negligence as a matter of law. Pigg v. Bloom, 22 Mich.App. 325, 177 N.W.2d 441 (1970). On reviewing this issue we rely on the often stated principle that unless All reasonable men would agree that the plaintiff is guilty of contributory negligence, upon a view of evidence favorable to the plaintiff, then the question should be left to the jury, Ingram v. Henry, 373 Mich. 453, 455, 129 N.W.2d 879 (1964); Bay City v. Carnes, 3 Mich.App. 623, 625, 143 N.W.2d 148 (1966), as it was properly in this case.'

After carefully reviewing the authorities presented and after viewing the evidence presented in this case in the light most favorable to plaintiff, we hold that it was error for the trial court to grant defendants' motions for judgment notwithstanding the verdict. There was evidence presented from which the jury could properly have found that the plaintiff not only did not see the wire, but that he was not aware of its presence, and thus was not contributorily negligent. Furthermore, even if the facts of this case were as the lower court and defendants would have them, that is, that plaintiff did see the wires before the accident, under Mackey, Ray and Pigg, supra, plaintiff would still not be contributorily negligent as a matter of law.

In summary, on the evidence presented, it was error for the trial court to conclude as a matter of law that plaintiff was contributorily negligent. The question of plaintiff's contributory negligence was for the jury to decide. See also Judge Allen's opinion in Wilhelm v. Detroit Edison et al., 56 Mich.App. 116, 224 N.W.2d 289 (1974).

2. DID THE TRIAL COURT ERR IN GRANTING DEFENDANTS A NEW TRIAL ON THE GROUND THAT THE JURY VERDICT WAS CONTRARY TO THE GREAT WEIGHT OF THE EVIDENCE?

Although we have given trial courts wide discretion in deciding whether to grant or deny new trials, nevertheless a new trial may only be granted on certain legally cognizable grounds. GCR 1963, 527.1. In Haidy v. Szandzik, 46 Mich.App. 552, 555, 208 N.W.2d 559, 561 (1973), our Court stated:

'(W)e have given the trial courts wide discretion in determining whether to grant or deny new trial. Benmark v. Steffen, 9 Mich.App. 416, 157 N.W.2d 468 (1968). However, as stated in Williams Panel Brick Mfg. Co. v. Hudsin, 32 Mich.App. 175, 177, 188 N.W.2d 235, 236 (1971):

"The rule laid down in Benmark v. Steffen, Supra, to determine if the trial judge has exercised his discretion properly is to the effect that If the reasons assigned by the trial judge for his action Are legally recognized and the reasons are supported by any reasonable interpretation of the record, he acted within his discretion.' (Emphasis supplied.)'

Thus, when granting a new trial, the trial court must assign a legally recognized reason for its action.

In the case at bar, the trial court gave as one reason for granting defendants a new trial its opinion that the...