In this action plaintiffs J. B. Warren and Elvie R. Warren alleged defendant Michigan Gas Utilities Company caused them injury through negligent or wilful and wanton mis *233 conduct. A jury returned a verdict of no cause of action in favor of defendant. Plaintiffs appeal, and we affirm.
Plaintiff J. B. Warren was an employee of Woodruff & Sons Construction Company. In 1973, Woodruff & Sons was a contractor on a sewer construction projeсt in the City of Benton Harbor. Defendant had employees on the construction site to assist Woodruff & Sons in locating its gas lines and to supervise construction around the gas lines. On December 14, 1973, Woodruff & Sons unearthed leaking gas pipes. Defendant’s employees made some repairs, and Woodruff & Sons backfilled the аrea. On December 18, 1973, J. B. Warren and a co-worker, Ollie Venters, entered a manhole to do work in the sewer. After three minutes Venters yelled "I smell gas”, and an explosion occurred a moment later.
The causes of the explosion were disputed. One of the unearthed pipes was subsequently found to be crаcked. Plaintiffs argued that the leaks had been inadequately repaired, and that defendant’s employees did not adequately supervise Woodruff & Sons’ baсkfilling around the pipes. Defendant responded that the pipes were adequately repaired, and that Woodruff & Sons improperly backfilled, craсking the pipe, after defendant’s employees had left the area. Defendant also asserted that Woodruff & Sons should have tested for gas before sending J. B. Warren into the manhole, and that J. B. Warren triggered the explosion by attempting to light a cigarette.
Plaintiffs made a motion
in limine
to exclude proof of Woodruff & Sons’ negligent failure to test for gas, arguing on the authority of
Parks v
Starks,
Relying again upon Parks, plaintiffs argue on appeal that the trial court erred by admitting evidence of Woodruff & Sons’ passive negligence, fоr such passive negligence, they allege, cannot, as a matter of law, be a superseding intervening cause. Parks, however, not only does not support рlaintiffs’ argument, but suggests a conclusion that the evidence raised a fact issue on superseding cause, and therefore was relevant.
In Parks, a defendant Grant аrgued that the negligent failure of other defendants to erect barriers around a hazard negligently created by Grant amounted to superseding intervening causе as a matter of law. Grant had run his automobile into the pillar of a service station canopy, which later collapsed on the plaintiff. The Court held thаt such intervening passive negligence was not a superseding cause as a matter of law where the other defendants had not assumed a duty which they failed to perform, or had not undertaken to do some act and performed it improperly. The Court also held that the record presented a fact question as to whether the danger was foreseeable and whether plaintiffs injuries were the natural and probable consequences of Grant’s negligence.
Assuming that the evidence of intervening pas
*235
sive negligence in the instant case did not, under
Parks,
establish superseding cause as a matter of law,
1
it dоes not follow, as plaintiffs suggest, that such evidence did not, therefore, raise a fact issue concerning superseding cause. On the contrary, the Court in
Parks
concluded that there was a fact issue on proximate causation in that case. The mere fact that evidence of intervening passive negligence does not establish superseding cause as a matter of law does not mean that such evidence cannot establish superseding cause as a mattеr of fact. Where reasonable men could disagree as to foreseeability of the intervening negligence the issue is one for the jury.
Moning v Alfono,
The issue was and is, however, a red herring. Defendant has never argued that Woodruff & Sons’ negligent failure to test for gas was a superseding intervening cause. Rather, defendant denied that it was negligent, and sought to еstablish that the sole proximate causes of the explosion were the negligence of J. B. Warren and Woodruff & Sons. The evidence was relevant when admitted for the purpose advanced by defendant.
For the same reason, plaintiffs’ argument that the jury instructions on superseding intervening cause were not sufficiеntly explicit to prevent jury speculation, see
McKine v Sydor,
Plaintiffs also objected to the trial court’s instructions on two construction industry safety rules requiring gas detectors and tests in tunnels. MCL 408.717; MSA 17.469(7),
repealed,
At the conclusion of proofs the trial court granted defendant’s motion to amend its answer to allege contributory wilful and wanton misconduct on the рart of plaintiff J. B. Warren. GCR 1963, 118.3. Plaintiffs argue in a conclusory manner that the late amendment prejudiced them because they were unable to address the issue thrоugh trial preparation, strategy and evidentiary content. However, it appears that the same evidence relied upon by both parties regarding thе presence or absence of contributory negligence by J. B. Warren *237 was the evidence relied upon by the parties regarding wilful and wanton misconduct. Asidе from conclusory allegations of prejudice, plaintiffs have demonstrated no actual way in which trial preparation, strategy, and presentatiоn of evidence was affected. There was no error.
Plaintiffs also argue that there was not sufficient evidence to raise a jury issue on contributory wilful and wаnton misconduct. We disagree. A jury could infer from the evidence presented that plaintiff was aware of the danger of smoking where gas is present, knew gas might be present, but recklessly attempted to light a cigarette anyway. See,
e.g., Gibbard v Cursan,
Plaintiffs argue that an exhibit offered by defendant consisting of 11 pages of specifications on excavating and backfilling contained in a contract between the City of Benton Harbor and Woodruff & Sons should not have been admitted becаuse it violated the spirit of a pretrial order to exchange exhibits where defendant provided plaintiffs with the specifications, but not the rest of the cоntract. Plaintiffs’ argument in essence is that no foundation for admission of the exhibit as having been a part of the contract was established. However, plaintiffs fаiled to object to the exhibit on the basis of lack of foundation prior to trial as required by the pretrial order. The exhibit was admissible.
Affirmed. Costs to defendant.
Notes
An issue never raised by defendant, and the resolution of which is unnecessary in this appeal.