233 N.W.2d 694 | Mich. Ct. App. | 1975
SCHULKE
v.
KRAWCZAK
Michigan Court of Appeals.
John F. Kowalski, for plaintiff.
Robert G. Chaklos, for defendant.
Before: BASHARA, P.J., and J.H. GILLIS and M.F. CAVANAGH, JJ.
*676 M.F. CAVANAGH, J.
In the early evening of October 10, 1970, Charles Schulke, a resident of Long Lake Trailer Court which was owned by Alfred Krawczak, saw his landlord working in the landlord's backyard. Schulke went to this refrigerator, got two beers, and then went over to Krawczak to talk with him. During the course of the conversation Schulke was either requested or volunteered to help Krawczak lift the loading bucket of a tractor onto a dump truck.
In the process of moving the bucket one of the arms by which the bucket was affixed to the tractor struck Schulke and knocked him from the position he had assumed. Striking the ground, Schulke sustained various injuries to his arm and legs.
Schulke filed an action of negligence against Krawczak alleging that he had not used reasonable care in loading the bucket. At trial the defendant moved for a directed verdict following the close of the plaintiff's case. The trial court reserved its ruling on that motion. At the close of defendant's case defense counsel renewed his motion. Decision on the motion was again reserved. After a verdict was rendered for the plaintiff, defense counsel moved for a judgment notwithstanding the verdict, which was denied.
The defendant now argues before this Court that as a matter of law the plaintiff was a licensee and therefore the defendant was entitled to a jury instruction of a lesser standard of care. He contends that the court below should have entered a judgment notwithstanding the verdict since the plaintiff did not show that the conduct of the defendant was willful and wanton.
This argument misses the mark. The conduct involved here was clearly active or affirmative *677 negligence. See Schmidt v Michigan Coal & Mining Co, 159 Mich. 308; 123 N.W. 1122 (1909), Polston v S S Kresge Co, 324 Mich. 575; 37 NW2d 638 (1949), Draper v Switous, 370 Mich. 468; 122 NW2d 698 (1963). The standard of care owed to a licensee where active negligence is involved has been stated as follows:
"The weight of authority would appear to be that after the owner of premises is aware of the presence of a trespasser, or licensee, or if in the exercise of ordinary care he should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence." Schmidt v Michigan Coal & Mining Co, 159 Mich. 308, 311-312, quoted with approval in Thomas v Consumers Power Co, 58 Mich. App. 486; 228 NW2d 786 (1975).
Thus, the trial court's instruction to the jury to evaluate the conduct of the defendant in terms of reasonable care was correct since a finding that the plaintiff was a licensee, under the facts of this case, would not change the standard of care to be applied. Similarly, the denial by the trial court of the motion for a judgment notwithstanding the verdict was correct.
Affirmed. Costs to plaintiff.