161 N.W.2d 594 | Mich. Ct. App. | 1968
SNIDER
v.
JENNINGS.
Michigan Court of Appeals.
*564 Robert L. Miles, for plaintiff.
George Worcester, for defendant.
BURNS, P.J.
Plaintiffs appeal from judgments entered upon jury verdicts of no cause of action. Scott Snider, 2 years of age, lived with his mother, Mary Snider, in a house trailer located in a trailer court which was owned and operated by defendant. Defendant provided a laundry room on the premises for the use of the tenants. While Mary Snider and a 13 year old girl were busy loading clothes in an extractor, Scott went behind an automatic dryer and stuck his hand into a service door used to observe the operation and maintenance of the motor. As a result the child suffered injuries to 2 fingers, 1 of which had to be partially amputated. Although the defendant testified that in his opinion the door could not have been opened by a 2 year old child, there was no testimony indicating how the service door was opened.
Plaintiffs claim the trial court erred by instructing the jury that contributory negligence by the parent would bar recovery by the parent. It is not necessary for the Court to rule on this particular charge. It is settled law that a child of such tender years as Scott Snider cannot be held contributorily negligent, and the trial court so instructed the jury. Therefore, the no cause of action verdict against Scott Snider could only mean one thing: the defendant was free from negligence. The main action having failed, Mary Snider's individual derivative *565 action must also fail. See Dewey v. Perkins (1940), 295 Mich. 611; Morrison v. Grass (1946), 314 Mich. 87; Bias v. Ausbury (1963), 369 Mich. 378.
During the trial the judge allowed the jury to view the scene of the accident. One aspect of appellants' assignment of error regarding this particular suggests that counsel should have accompanied the jury and the sheriff to the scene. The absence of counsel and judge is of harmless consequence because, even if present, they could say nothing. No person other than the officer designated by the court shall speak to the jury concerning any subject connected with the trial. GCR 1963, 513. Appellants further claim, however, that the conditions of the scene had changed to their prejudice. Before viewing the premises, the jury had heard defendant testify upon cross-examination that he had installed a board in such a manner so as to prevent small children from getting behind the dryer. Appellants contend that this also prejudicially prevented the jury from examining and testing the service door, but we find no merit in this argument. The purpose of the jury's visitation and view was to make clear in their minds the evidence already introduced and not to augment the evidence. People v. Connor (1940), 295 Mich. 1.
Appellants' counsel complains that the court erred by asking him, in the presence of the jury at the conclusion of the charge, if there was anything he wished to add. The record shows that after the jury retired counsel was again asked if he had any objections to the charge, and counsel replied, "No". The case was in no way prejudiced by this procedure.
A review of the record discloses proofs which, if believed by the jury, support the fact-finder's conclusion; the verdict was not against the great weight *566 of the evidence. The trial judge did not err by denying appellants' motion for new trial.
Affirmed. Costs to appellee.
QUINN and ZIEM, JJ., concurred.
