Cary v. Thomas

315 616 [May' v.

CARY THOMAS. Presumptions. Evidence — 1. from which Presumptions disappear when evidence introduced ean be found. facts ‘ Contributory Negligence — — Negligence — Evi- Instructions 2. Eyewitnesses. — Charge Request dence— contributory of Instruction issue body softeners, decedent, a for serviceman water whose being fumi- in the of defendant’s house then found basement cyanide gas, gated was to be determined from evidence with ordinarily prudent bearing upon which an the care and caution person under circum- and careful would have used the same including signs placed protection, for his stances own house, the entered house fact that decedent unmarked, family an unlocked door with the absent held, hence, senses, justified, and the effect of the give request it was not fail decedent error to presumed contributory negligence free because eye- self-preservation instinct in natural the absence witnesses. op op Liability Premises to Third Persons Owner 3. Same — Negligence. Independent Contractor’s independent an contractor is not Generally, a eontraetee injuries occurring persons a result of to third liable doing negligence in work on the contractee’s the contractor’s diligence selecting compe- in due premises, where he uses thing be is not in contracted to done tent ^[6] [3-5] [4, [1] [2] [3-5] 5] 38 20 Am 20 Am 27 Nonliability Am Am Am Jur, Negligence Jur, Jur, torts of Jur, Jur, References Evidence Evidence Negligence Independent an § § 450 et for Points employer §§ 166. § 362 Contractors seq. et 368. seq. contractor. respect Headnotes § 27 et seq. 18 ALR 801. injuries caused Cary v. Thomas. necessarily a nuisance nor .itself will it result a nuisance proper precautionary if measures are used. Fumigation—Water Request 4. Same — Softener Serviceman — Charge Instructions—Evidence—Independent — Contractor. It was not error for trial give request court to fail to charge to premises that delegate owner of could duty not to see to independent it that contractor engaged who had been fumigate premises eyanide gas with precau- used reasonable against injury plaintiff’s decedent, tions a water softener make, serviceman who was scheduled to his service call while fumigation being done, given was where instruction was that jury was to determine whether or not defendant had exercised in hiring care competent person a do the work left and premises charge in his under circumstances that it would necessarily danger have resulted in appears- others and there was evidence defendant did not know the exaet day deeedent softener, was to signs duly service the posted were by could be seen deeedent and the con- tractor assured defendant that all doors would be locked posted job until completed. Fumigation—Instructions—Owner’s Responsibility. 5. Same — defendant, premises being fumigated of Instruction owner eyanide gas, duty was under to exercise reasonable care prevent injury upon and caution to accident or during process, adequately jury responsi- informed of his by bility decedent, in action administrator of estate of serviceman, through water softener who entered the house an unlocked door on scheduled call. Hearsay—Instructions. 6. Evidence — testimony Independent engaged' Instruction that of by fumigate gas, eyanide defendant owner to house with wife, defendant’s party deceased at time of trial and not a to action administrator of estate serviceman who died servicing softener, while water had told the witness the locked, door which decedent had entered was was inadmissible unless the husband heard such statement held, acquiesced proper, in it since otherwise statement hearsay and inadmissible. JJ., Smith Black, dissenting.

Appeal Kent; Searl (Fred J. Submit- N.), ted 12,1956. January (Docket No. No. Calendar 46,639.) Decided May 14, 1956. [May- of the es- Cary, James administrator

Case R. Robert Burk, deceased, against tate of Charles F. deliv- for for death of service W. Thomas damages fumigated. house Ver- eryman being basement of dict appeals. for defendant. Plaintiff and judgment Affirmed. &

Rosenburg, & Davidson Dudley Painter Rogers, plaintiff. Cholette, & Anderson Alexander,

Kleinstiver Ruchanan, Wells, Perkins & Conklin D. (Edward counsel), defendant. instituted by This is action J.

Sharpe, James F. the estate Charles R. administrator Cary, wrong- for the to recover deceased, damages Burk, Burk. Defendant Thomas F. ful death Charles on road of home McCain were the owners a wife time prior Some Jackson, Michigan. near the city Wilman, 18, 1.951,they Charles employed to October home. their fumigate an independent north, a has 3 front door on the entrances, The home a third entrance south, a kitchen door on the attached the house. which is through garage was driveway to the from garage Entrance door. There aluminum garage overhead to the a from basement leading garage is door defend- In the process fumigating of the house. helper and his saw that all home, ant’s Mr. Wilman inside, were latched from the house windows locked, door. except garage Signs'were all doors front back of the house which placed following, contained “death “danger” gas.” was The placed No door. sign was which' fumigate cyanide used gas, poison- i quantities. ous if inhaled sufficient Cary v. Thomas. employed by F. was deceased, Burk, The Charles Company Michigan. Jackson, the Servisoft Un- every the Thomas home was contract, der a serviced days. Thomas was a Defendant furnished cal- showing the endar, service calls and the date the 18, 1951, service was to be rendered. On October the deceased arrived p.m. the Thomas home about 2:30 at p.m. body

At about 5:30 was found in the basement of the Thomas home. The basement and impregnated cyanide gas the entire house was body pound when the deceased’s found. A half cyanide previously placed had been in the base- apparently ment. The deceased entered the east proceeded drive and as his truck around the rear of the house, garage.

was headed north front of the driveway point The east at the to the nearest front approximately of the house is a. distance of 60 feet sign from the front door. The at the rear kitchen approximately higher door was 12 feet than ground driveway. level of the The deceased was by previous survived his widow and 2 children marriage. plaintiff 9, 1953,

On October filed a declaration in county, the circuit court of Kent in which it is al- leged : place “That at said time and it then and there duty

became and was the of this defendant to use protect reasonable care to invitees or licensees on premises coming from in contact with the dan- gerous deadly gas being introduced into the pre- precautions residence; to take reasonable entering vent licensees or invitees into said deadly gas present; when such plaintiff’s exercise reasonable care not to invite to place danger; decedent into a to reason- exercise premises able care and sonably warn to render the rea- prudence plaintiff’s call; safe for decedent’s service to plaintiff’s deadly presence a decedent of the premises; all en- to lock gas within contained warning signs post to and to said residence trances residence; gas deadly said to all at entrances precautions prudent and take all reasonable to and injury plaintiff’s reason of prevent decedent to to process; warn fumigating and to advise such Servisoft plaintiff’s employee, Company and its being process fumigation was decedent, that said inon said residence. carried contrary aforesaid to the and “That nevertheless carelessly, negligently and did duties defendant perform carry recklessly duties the various fail out and to negli- carelessly, imposed upon him did gently care to fail reasonable to use recklesslv premises from protect invitees or licensees deadly dangerous coming in contact with to take gas reasonable vitees residence; fail did introduced into the prevent precautions in- licensees to premises entering when such into said deadly gas able care present; exercise reason- fail to did plaintiff’s into decedent not to invite place danger; care to exercise reasonable did fail of' reasonably prudence safe to render the plaintiff’s call; fail to did decedent’s service deadly presence plaintiff’s of a warn decedent of premises; fail lock did to within the contained warning post to to all entrances said residence deadly gas signs dence; to at all entrances said resi- prudent did fail all reasonable and to take injury plaintiff’s prevent precautions by decedent process; fumigating fail to did reason such Company and its and' warn the advise Servisoft fumigation- employee, plaintiff’s decedent, that said being process residence. carried on in said alleges that this defendant whol- “Plaintiff further ly trance used en- failed lock or secure the basement door wholly by plaintiff’s decedent and failed any warning signs post entrance used said plaintiff’s decedent. that the defendant “Plaintiff further shows knew used the entrance decedent basement Cary v. Thomas. 621- in the water servicing softener and knew that plain- tiff’s decedent was dne at said residence on said date to conduct such That a re- servicing operation. as sult of the defendant’s failure to use due care as herein and alleged by reason to per- of his failure form the various duties him in imposed upon declaration set forth a proximate and as result thereof the said left and residence was unlocked un- at posted the door used by plaintiff’s decedent. That a licensee and of the decedent, invitee defendant, without or notice that said knowledge home was filled with a en- deadly fumigating gas, into tered the basement entrance of said home to service water softener. That at time and place plaintiff’s while in the decedent, basement of said home and in the process servicing said water came softener in contact with and inhaled the cyan- ide in said and that as a result basement, thereof said gas caused his death at said time and place. That plaintiff’s body decedent’s was found alongside water said softener the late afternoon of October 18, with the 1951, water softening process partially done.”

Defendant filed an answer to plaintiff’s declara- tion, which it is stated: every allegation

“Defendant denies each and said contained, therein and shows that Charles T. Wilman, doing Fumigating business as Wilman certain came to residence to do fumi- Company, said he had ar- day previous day gating to come to ranged plaintiff’s wife said residence 1951, that on said October full purpose; for such residence and possession prem- control and said for the purpose ises was turned over to said Wilman defendant wholly and the was fumigating, therefrom until permitted excluded completely residence, to return to the said said Wilman full and control of the said possession until residence he turned hack to defendant process and his after said was com- wife, fumigating fumigating gas had dis- pleted and all traces disappeared persed therefrom; until such exclusively wholly residence time said management possession, of said Wil- control and defendant; that before de- man, to the exclusion warning against premises signs left fendant said posted fumigating dangers on had been of said pro- premises by were the locks Wilman, said said leaving prem- said doors, on the and that after vided ises complete the full and access said Wilman had fumigating perform to the the said work of same any the all entrances and and enter doors, same and authority, and full duty and that it was said Wil- persons and therefrom, to exclude all man’s that all of the and doors to residence entrances said provided proper and of clos- were locks means securely fastening ing same, the all of which and was keys whom well known to said said Wilman, family were turned residence over when defendant’s and it over to left said residence turned Wilman be- building fumigate the fore he went into said the knowledge same; that said Wilman had full of all entrances to said residence and and the provided warning signs thereon, locks and had posted all on of said entrances.” trial, and at the came on case conclusion The cause plaintiff’s made defendant’s counsel a motion of for a directed ground that

verdict defendant responsible negligence for the is not of an Thomas that this accident was by subsequent part acts of the caused plaintiff Wilman, Mr. and that has failed to estab- deceased, F. Burk, lish that Charles was free from contributory negligence. The motion was denied, jury. later the was submitted to the cause The jury returned a verdict in favor of defendant. Plain- urges appeals trial tiff that the court erred in give failing requested following instruction the as by plaintiff: Cary v. Thomas. you there “I further instruct that this action eyewitness no to the accident itself. Because of self-preservation gen- which the natural instinct of erally prompts men to exercise care caution safety, ordinarily presumption that

their there is particular were due care and caution observed you, plain- I the therefore, instances. instruct presumption tiff is entitled to decedent at the exer- the time of his accident presumption ordinary not This is care, cise of overthrown injury. by mere fact of contributory negli- presumption of freedom from gence evidence from continues until rebutted contrary.” can find to the giving instruction, the trial Instead above jury: court instructed plaintiff, Cary, Mr.

“It is the claim of who said, Mr. Burk’s have administrator, through the house that Mr. Burk entered this estate, garage entering garage going through this other door door then garage basement; from the into the leads of these were unlocked and that neither both doors signs any warning upon it; he, and that them had of employer Burk, in the of Mr. did so business had the service of this accident. happening on his house, and that was free no notice part the water which contributed the softener, he presence that he ^[*] * of the any * did not any negligence cyanide gas manner to the know in part contributory negligence the on “And any part negligence plaintiff which is contributes weigh happening do of the accident. We the negligence parties negligence If both in a case. the plain- plaintiff negligent, defendant, the are the happening the the contributes to tiff’s case, course, in this Mr. Burk accident, or, then— represents plaintiff the the the whose estate plaintiff —then say, as I So this is, cannot recover. you plain- question whether determine, first Michigan contributory free from decedent, Burk, Mr. tiff’s negligence. into consideration you question, determining take In upon bearing the- all the evidence ordinarily pru- degree dent which an care and caution person under the have used and careful would including protection, for his circumstances own same signs, Burk should whether Mr. the location of the entered the fact that Mr. Burk have seen them, by opening through the, or, if it is a house, fact, by going garage the into- door and family absent; evidence basement with is, the senses, of the effeet'of eyes, any forth and other evidence nose and so upon deter- the care which the case mine bears prudent ordinarily man an careful and have under like cir- and would used should have used cumstances.” general rule in the absence that, it is the

While eyewitness, presumption due care exists, of an Laing, yet 139, v. 300 Mich in Heckler as was said 147: 146,

“ appear.. ‘Presumptions disappear when the facts appear evidence is introduced facts when the The Presumptions may be found. from which the facts they weighed against fade cannot be out in the evidence light no matter how contra of evidence, Dilley, dictory 273 Mich 601, Patt v. the evidence.’ 606. “ opinion that it is clear that it is- are of the ‘We presumption that the that á in this State rule contributory negligence plaintiff can be free from is only apply there where absence in cases said of contrary. question any The to the evidence direct judge- before the trial there evidence then Was is, presumption to overcome could be said which relied upon?’ Delano, 191 Mich 209. Baker v. Co., United Traction also, Gillett v. “See, Brotherhood American 410; Rousseau v. 205 Mich of Trust Co. v. American Union Yeomen, 101; 186 Mich William Mold Co., 557; Car Mich v. Commercial Cary v. Thomas. 625. Co., Lumber 278 Mich 610; Christiansen v. Bonifas Silber, 282 Mich 403.” In opinion our there were facts circumstances from which inferences drawn could he that justified the trial court in instructing the as he did. jury, We find no error in failing to give requested instruc tion.

Plaintiff also urges the trial court was in (cid:127)error failing give the in- following requested structions :

“I further instruct that an such you employer, as the home injuries owner in this case is liable for caused by the an failure of contractor to exercise due respect care with to the performance of work which is inherently intrinsically danger- such as this. The lia- ous, theory upon this bility is based is that a con- person who engages tractor to do work of inherently an dangerous-char- acter, remains subject absolute, to an nondelegable (cid:127)duty see that is performed with that degree care which is appropriate or, to the circumstances, in other that all shall words, reasonable precautions be taken its to the end that during performance, third persons, such as Burk, deceased, Charles P. when protected may reasonable be acting care, effectually injury. I that it way, you

“Stated another instruct is the every does, who duty person another, person, causes to be done is to taken, whole act which from its nature liable unless are precautions taken, do injury to see to it that others, those are precautions and he escape cannot this duty by turning the over a contractor. performance “I further instruct members of the in in you, jury, with the .accordance rules law foregoing accordance with the undisputed case, facts home fumigation Thomas the use inherently created an con- cyanide gas dangerous further instruct failure to dition, 345 626

post warning garage a notice on the door or to lock negligence door constituted a matter as law, defendant, Thomas, of is, gence and that the Robert W. negli- chargeable a law, as matter of with that though might negligent even have been the act of contractor Wilman. you, jury, “I therefore instruct members of your only that in questions of case, consideration this by you (1) to be decided are whether the plaintiff’s decedent, Burk, .Charles F. was himself guilty any negligence of which contributes to brought (2) you about if find that the death, his any contributory guilty negli- deceased was not gence is case.” only question you other to determine damages you may the matter of that award in this jury: trial

The court instructed the you however, will “First, discuss this other- question upon bearing liability. the matter of You I, plaintiff will recall instructed that the must prove by preponderance tion to freedom from a of the in addi- evidence, contributory negligence part of 2 Burk, Mr. other either elements: by defendant own was, Thomas his acts guilty negligence proxi- omissions, which awas mate cause of the accident, or that Mr. Wilman was guilty negligence proximate a cause responsible- of the accident that Mr. Thomas is negligence. up I’ll Wilman’s So now take this negligence matter, latter Wilman’s and Thomas’ re- sponsibility for it. Mr. Wilman was what law is ‘independent independent an called contractor.’ An carrying independent contractor is one who is on an piece business and contracts to do a of work accord- ing to control subject being to his own methods and without employer his as to the means which accomplished, only the result is to be but to the- of the work. result agreed, spend “In case it is need not any agreed -by time on that issue it is because alL Cary v. Thomas. parties, con- Wilman was Mr. tractor. you are instructed that under the undis- “Now, independ- puted Wilman, in this Mr. case, facts guilty negligence which was ent proximate His cause of the accident. consisting of failure to certain that the door into the house from the make garage, doors garage and in the basement to the house from door post garage warn- locked, were failure to signs ing on or en- and notices about leading or or into the base- trance, ment. on about door you that, law, do instruct as a matter of So negligent and that his Mr. Wilman * * * proximate awas cause of this accident. August, 1950 and I do October, “So between you upon for issue, is, this that wheth determine on based all the and circumstances this er, cas facts e appeared they the defendant Thomas as Thursday he left his noon with when home this fumigator Wilman, Mr. man or exterminator doing all man, those facts and work, whether, there in view of appear it would to a circumstances, reasonably prudent man that the work which was subject necessarily about to be done would other persons question, you danger. considering In to unusual they must view the facts as would reasonably prudent appeared to have then a man they may subsequently appear after the and not as occurrence question. ques the accident in So the reasonably person prudent tion a with is, would knowledge fumigating on the one that a hand poisonous was to used in the home and which was that it would be unsafe to enter said he 3 you days, hand, he find, 4 but if so on the other or you competent person if a so find he had hired had that all the used, informed as to the method to be been safety with would be locked locks doors warning posted signs, and in would be and circumstances view all the other facts closed dis the evidence in this would ordi- case, Michigan Reports. narily have reason to believe that the prudent person careful have or believed, which work was about exposed obviously to be done others to unusual perils, da subjected necessarily persons or third to unusual nger? “You are that if the defendant, instructed Mr. Thomas, under the facts and circumstances then appeared they him, known to as before the accident and before he left the home, knew, as a reason- or ably prudent person should have that what known, inherently dangerous was about tó be done was likely subject persons other dan- unusual ger, legally then, under the law, the defendant is responsible for the Wilman, acts of you But, contractor. hand, other are also instructed that under the if, facts and circumstances they appeared reasonably then Thomas, to Mr. prudent person would or have believe, reason to be- performance lieve, that the contract, performed ordinary was about to be in the mode of doing necessarily subject work, would third persons danger, to unusual then are instructed that under those circumstances, those facts, de- responsible fendant would not be liable independent of the acts contractor, Mr. Wilman. Now, that the is issue will have to decide you get point if, course, in the case. Does general the case come within the rule that the owner ordinarily is not liable for the of a com- petent independent or does it liable with- come exception neg- in the that the owner is for the independent ligence of the contractor if the work is inherently dangerous of such character in the that, things, necessarily natural course involves danger to others?” given by

The substance the instructions question trial court was it was of fact whether ordinary hiring defendant Thomas exercised a care competent fumigate contractor to his house on the question. date is There evidence this case that Cary v. Thomas. defendant hired a contractor competent to fumigate house; that he discussed with the contractor method of and the fumigation protection against any one the home fumi entering during process of gating. there is evidence from which a Moreover, find jury could that defendant Thomas did not know the month specific day of when dece dent would softener; service the that the danger sign on the front and back of the house was large enough to be readily seen de plaintiff’s decedent; fendant was informed by the contractor that all doors would be locked and posted job until completed. Defendant testified:

“So between 1950 and August, October, 1951,1 do not remember of any occurrence that I was home to see Mr. Burk or any other come to serviceman our home. had never seen come to our home anybody and just walk through door and the door and walk down in the basement without being announced or I did doorbell. ringing know that anybody to our home coming into walking our home without them- announcing selves or abouts known.” the doorbell their ringing where- making taken from 39 CJ,

We approve following 1324: and Servant, p § Master in the the rule stated decisions in “Although different there is many ways, although a con- authority as to whether a par- siderable conflict of case within the brings gen- ticular state of facts from liability, eral rule the contractee relieving fall within exceptions causes it render him one rule deducible from

liable, the general one now universally decisions and the recog- the nized is where the relation of that, has been contract and due exercised diligence exists, a and the competent in selecting thing not in itself a contracted to be done is nor nuisance, [May- 630 will a necessarily result nuisance if proper pre- used, measures are cautionary third and injury to a results, not person from the fact that the work done, is but manner wrongful negligent a contractor or doing servants, the con- tractee liable therefor.”

See, Rogers also, Parker, v. 159 Mich (34 LRA 955,18 NS Ann 753); Inglis Cas and v. Millers burg Driving Ass’n, 169 Mich 311 (Ann 1913D, Cas 1174).

The trial court was not in error in failing to give the 'requested instructions.

Plaintiff urges also the trial court was in error in to failing to give following instruction the jury: “I instruct you, members of the jury,

owner premises directly who or impliedly invites others to enter for some purpose of interest or ad- vantage such owner, owes to a persons duty such to use ordinary care to have his premises in reason- ably safe condition for use in a manner consistent with the purpose invitation, or at least not to- lead them into dangerous trap them- expose to unreasonable risks, but them give adequate notice timely of latent or warning concealed dangers are known to the owner but not' to the other. I further if charge you that there are hidden dangers upon the owner must use care to ordinary such, give warning thereof invitee.”

The trial court instruction gave to- following the jury:

“You are instructed that the defendant owed the care duty reasonable un- exercising caution, the circumstances, der having dwelling the accident fumigated upon preventing or injury such By reason- premises during process. able is meant care care and caution degree 631 Cary v. Thomas. ordinarily prudent person which an the same under would use like It not mean or circumstances. does special highest degree only of care, but care, usually by the reasonable care that exercised person ordinary in similar like or circumstances. question you So the have determine here on particular matter Thomas, this as to whether Mr. by guilty negli- his own acts or omissions, was gence, is under whether, the circumstances and the they you find evidence,-the facts as and as them, existed 18, 1951, October Mr. Thomas used that degree ordinarily prudent person of care which an' would have used under like circumstances.” by given

We think the instruction the trial court adequately jury responsibility informed fumigation, in defendant connection' the house. complains following

Plaintiff also of the instruc- given by tion the trial court:' “But are instructed that what Mrs. Thomas may anybody have said to Mr. else Wilman being relative to the doors locked would not be bind-

ing upon pres- Mr. Thomas was said in his unless acquiesced ence in and he, substance, in and to it, that, either course, or act of words. you silence say But unless he heard her what will find she may responsible said, have he would be for her Michigan statements. A husband in is not liable any, ordinary wife, for the of his if in attempt go cases. won’t all into the details of subject. got plenty We have with- in case this any. getting out afield But, case, under any facts made he would not liable for here, be statements they presence.” her unless were made in appears It that defendant’s wife was deceased at trial time of the never made a defendant During Edinger, in the cause. the trial Mr. Arthur helper stated Mrs. told him Thomas door locked, alleged but no claim is made that this made statement was presence urges of defendant. Plaintiff that this evidence is admissible for the reason that injury at the time of the fatal decedent, Mr. and Mrs. Thomas owned the home as tenants by the entireties, Mrs. Thomas acted as defend- agent making arrangements fumiga- ant’s for the tion. The trial court ruled that such evidence was jury not admissible and instructed the above as quoted. opinion In our such statements not made in the presence hearsay of defendant were statements and questions not admissible. Other have raised, been opinion they in but our are not vital to the issues involved and need no discussion. judgment

The is with affirmed, costs to defendant. J., C. Dethmers, Boyles, Kelly, Carr, JJ., concurred with Sharpe, J. (dissenting). uniformly Black, J. This Court has parties held that are entitled to have their cases jury upon submitted to such of the theories ad- by justified by vanced them are the evidence and applicable they the law and that thereto, are en- appropriate titled to instructions to such theories (See opinion collection of of cases, Mr. Justice People 495). Rich, v. 237 Mich 481, Fellows, request charge appropriate plaintiff’s A to to theory wrongful dealing in this action for death, subject presumed duly with the care, due request given, submitted. The was not either in lan- guage in substance. The omission of the trial judge charge jury respect pre- with to such sumption my was, view, reversible error. opinion

The Sharpe of Mr. Justice all shows too clearly guilty only decedent, faith- timely duty imposed ful and attention to on him Cary v. Thomas. unwittingly a contract of service, entered a lethal trap negligence by design not set but the inexcusable charged legal duty guard

of those against ensuing tragedy. him the Two entrances to

trap guarded by signs were and bolted doors. “logical” way The entry third entrance—the according service the water softener to defendant’s testimony guarded by own warning neither nor bolted —was any It kind. the one which eternity. decedent entered one, No so far as this record discloses, bothered to call the decedent or his employer might warning naturally with that one ex- pect prudent reasonably person. of a background strength

Against fact, signs, warning 2of tacked one to the front or street (plus alleged sensory door one to the door rear warning house), Burk entered it is Mr. after granted plain- said that the court should not have request charge request No tiff’s quoted opinion. Mr. Sharpe’s Justice plaintiff request peremptory Since not in did struction that his free from decedent was contribu tory negligence, as in we need decide Peklenk v. Copper Royale Co., Isle 187 Mich 644, 648, whether appropriate such instruction would be to this case. peremptory It would if seem, instruction assuredly proper right Peklenk, in would be such may, upon it we are called this case. Be as say request No said 11 whether should granted. think rule I under the should, have been that the circumsantial evidence of decedent’s the present slight any negligence, here, if be is so such require the inconclusive as submission and question language jury re either in the as by plaintiff quested in that in Gillett v. shown Company, Michigan Traction 205 Mich 410. United 421): (p said in the cited As was case jury, weighing “And while the evidence, may presumption, yet if, not consider uninflu- presumption, they enced reach the conclusion tending negli- the evidence to show decedent’s gence is not entitled to credit and should be disre- garded, presumption may then be considered as may necessary remaining in force far so as be proper the fact that the establish deceased exercised expressly respects in all not care established (the entirely presumption) evidence. It abeyance pending displaced, jury’s but remained preliminary reaching decision as to the given particular credence to the evidence on the be point in which was claimed.” charge requested, entitled to the

Plaintiff was equivalent language either in the thereof or sub- charge trial court’s stance. Since the nowhere in- presumption to the care, cluded referred due presumption jury appli- and failed to submit the jury cation lack care on should find no part of decedent from the circumstances, would reverse for new trial. J., concurred with J.

Smith, Black, part The late Justice took no in the decision Reid of this case.

Case Details

Case Name: Cary v. Thomas

Court Name: Michigan Supreme Court

Date Published: May 14, 1956

Citation: 76 N.W.2d 817

Docket Number: Docket 18, Calendar 46,639

Court Abbreviation: Mich.