Berry v. Fruehauf Trailer Co.

371 Mich. 428 (1963)

124 N.W.2d 290

BERRY v. FRUEHAUF TRAILER COMPANY.

Calendar No. 37, Docket No. 49,134.

Supreme Court of Michigan.

Decided November 4, 1963.

Clark Shanahan, for plaintiff.

Gault, Davison & Bowers (Matthew Davison, Jr., of counsel), for defendant.

PER CURIAM:

Plaintiff was injured loading a truck on defendant's haulaway trailer, while driving the truck up an attached ramp which collapsed. The haulaway trailer had been brought to plaintiff's employer for testing, pending a decision whether or not to purchase. Among other things, plaintiff claimed defendant was negligent in designing and manufacturing the ramp and its connecting parts so that it was structurally unable to withstand the stress and strain of loading. Plaintiff's testimony tended to show that vibration of the ramp caused a connecting pin to be ejected from its position, and that this, along with basic structural defects in the ramp, resulted in its collapse. Defendant offered *430 testimony in contravention of each claim. The jury found for plaintiff.

On appeal, defendant's essential-to-decision claims of error are as follows: Did the trial court err in admitting testimony of a prior accident and did the court properly instruct the jury? Over defendant's objection, the court admitted testimony of a prior accident involving equipment made by defendant of "the same or similar" design as the one involved in this case, except, however, that certain struts or braces had been added and skids changed on the loading ramp assembly. The prior accident occurred 2 weeks before the one in question and in the presence of 1 of defendant's representatives. Defendant objected, at the time, on grounds that the prior accident involved a ramp of somewhat different design; it claimed, therefore, that testimony of the prior accident was irrelevant.

This issue is governed by our recent decision in Freed v. Simon, 370 Mich 473, in which we held admissible testimony of a prior accident occasioned by a fall through a hole in a trailer which had been covered between accidents but which cover lasted only a short time. We quoted (p 475), with approval, therein the annotator's conclusion at 70 ALR 2d 167, 172, 174, as follows:

"Subject to the general requirements of similarity of conditions, reasonable proximity in time, and avoidance of confusion of issues, the courts have generally recognized that evidence of the occurrence of a prior similar accident at the same place as the accident in suit has some tendency to establish a dangerous or defective condition at the place in question and may be admitted for this purpose, in actions where the dangerous condition of the place in question is at issue."

*431 The second essential issue is defendant's claim that the trial court did not properly instruct the jury. Defendant concedes that of 8 requests to charge made by it, 4 were adequately covered. Of the remaining 4, further examination of the brief record on this point shows that the substance of these requests were given, where not objectionable. That this is all required, needs no citation. Defendant's chief complaint on this score seems to be that the trial court did not elaborate upon the difference between "possible consequences" and "probable consequences." Upon defendant's request, at the end of the charge, the trial court instructed the jury in this manner:

"I'll say this: The law does not charge the manufacturer with all possible consequences of an alleged negligent act, but it does charge them for such consequences from an alleged negligent act which is a probability, the distinction being between the words possible and probable."

It is to be assumed that the average juror knows the difference between "possible" and "probable." The trial judge need not emphasize the obvious.

As to the other questions raised by defendant, going to the weight to be accorded plaintiff's proofs, these were properly jury questions and, hence, need not be reviewed here seriatim.

Affirmed. Costs to appellee.

CARR, C.J., and DETHMERS, KELLY, KAVANAGH, SOURIS, and SMITH, JJ., concurred.

BLACK, J., concurred in result.

O'HARA, J., took no part in the decision of this case.