Rivers v. Ford Motor Co.
280 N.W.2d 875
Mich. Ct. App.
1979
Check Treatment
Per Curiam.

Plaintiff appeals as of right a judgment in favor of defendant Ford Motor Company pursuant to a jury verdict of no cause of action on plaintiff’s complaint.

On October 17, 1972, while employed as a press operator for the Regal Stamping Company in Detroit, Michigan, plaintiff Mary Rivers suffered the traumatic amputation of three fingers of her left hand. The injury occurred when plaintiff’s hand was in the die space of the press. Although Ford had originally outfitted the die with "kickers” that would automatically eject parts from the press, these had been removed by Regal. The dies were not "guarded” in any other fashion to prevent press operators from placing their hands in the die space, although Ford offered evidence that Rivers had been supplied with tongs by Regal to insert and remove parts from the press, and had been repeatedly told to use them.

Plaintiff then commenced this personal injury action against Ford Motor Company alleging that the defendant Ford Motor Company had violated its duties to the plaintiff by allowing the unguarded dies to be used by Regal.

First, relying on Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), plaintiff claims that the trial court erred in instructing the jury on plaintiff’s contributory negligence. Funk held that contributory negligence is not a defense when defendant breaches a common-law duty to provide safety equipment and this breach is the cause in fact of plaintiff’s injury. In the present case defendant did install safety equipment on the dies, namely the kickers, and thus the first part of the *97 Funk test is not satisfied. Furthermore, plaintiff was provided with safety tongs which she failed to use, and if she had used them, the accident would not have occurred. Therefore, the cause in fact of the accident was not the failure to provide safety equipment, but plaintiff’s failure to use the safety equipment provided. The rule announced in Funk is thus not applicable. Tulkku v Mackworth Rees, Division of Avis Industries Inc, 76 Mich App 472; 257 NW2d 128 (1977), lv gtd 402 Mich 928 (1978).

Although the rule announced in Funk is not applicable and plaintiff’s negligence is a relevant consideration in determining defendant’s liability, the Michigan Supreme Court in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), replaced the doctrine of contributory negligence with that of comparative negligence. The Court gave this new doctrine limited retroactive effect, holding that it is applicable "to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal”. Placek at 667. In the present case, plaintiff objected at trial to the instruction on contributory negligence and submitted to the trial court an alternate instruction on comparative negligence. On appeal the plaintiff labeled as error the trial court’s failure to give the instruction on comparative negligence. The issue was therefore preserved for appeal and the case must be reversed for a new trial.

Plaintiff next contends that the trial court erred in instructing the jury on intervening negligence. The instruction given was virtually identical to SJI 15.05. Plaintiff claims, however, that the standard jury instruction is not accurate because it does not inform the jury that the intervening negligence is not a superseding cause which would *98 defeat defendant’s liability if defendant could have reasonably foreseen the intervening negligence. Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959), 2 Restatement Torts, 2d, § 447, p 478. Plaintiffs point may have been well taken except that plaintiff indicates no evidence introduced below which would have shown that Ford could have reasonably foreseen that Regal would remove the kickers which Ford had installed on the dies. This being the case, the supplemental instruction which plaintiff now advocates was not applicable to the case and the trial court’s failure to give it was not reversible error. However, if upon retrial, the plaintiff can offer evidence that defendant should have reasonably foreseen Regal’s action, SJI 15.05 should be supplemented to correspond to the Supreme Court’s opinion in Comstock.

Finally, plaintiff alleges that numerous other instructions given by the trial court were erroneous. These instructions were not objected to at trial and therefore the alleged errors were not preserved for appellate review. Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965). If upon retrial these issues are brought to the attention of the trial judge, he can make whatever rulings are appropriate and perhaps even find solutions that are satisfactory to both parties. This being the case, we see no reason to anticipate plaintiffs objections and the trial court’s rulings and decide the issues now. Therefore, we express no opinion on the merits of the other issues raised by plaintiff.

Reversed and remanded.