Brady v. Michigan Consolidated Gas Co. , 31 Mich. App. 498 ( 1971 )

31 Mich. App. 498 (1971) 188 N.W.2d 58

BRADY
v.
MICHIGAN CONSOLIDATED GAS COMPANY

Docket No. 8331.

Michigan Court of Appeals.

Decided March 23, 1971. Leave to appeal denied May 20, 1971.

John Cozart, Jr., for plaintiff.

Dyer, Meek, Ruegsegger & Bullard (by Richard J. McClear), for defendant.

Before: V.J. BRENNAN, P.J., and LEVIN and PETERSON,^[*] JJ.

Leave to appeal denied May 20, 1971. 384 Mich 842.

LEVIN, J.

Plaintiff, Joanne Brady, stepped out of an automobile onto ground which appeared to her to be solid, but was, in fact, faulty. She sank into a hole up to her chest.

There was testimony that the defendant gas company had been digging in the area for about a week several weeks before the accident, but the witnesses were uncertain whether the digging occurred at the place where the plaintiff suffered her injuries or at a short distance, less than 50 feet, from it. The trial judge, who sat without a jury, found that the plaintiff did not preponderate, not because he disbelieved the testimony of the plaintiff's witnesses, but because he concluded that the plaintiff had failed to prove that the defendant had dug at the precise spot where the accident happened.

We are left with the definite and firm conviction that the judge made a mistake in finding that the plaintiff failed to prove that her injuries were caused by the negligence of the defendant in digging and not restoring the ground and in failing to make the area again reasonably safe for use.^[1]

In the light of the entire record we do not wish to preclude the defendant, who offered no proofs on liability, only on damages, from controverting plaintiff's claim, and, accordingly, we do not confine the inquiry on remand to the amount of plaintiff's damages.

Reversed and remanded for a new trial. Costs to abide the event.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] GCR 1963, 517.1; 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), pp 596, 597, authors' comments.

We observed in Humphrey v. Swan (1968), 14 Mich App 683, 686:

"Appellate courts traditionally exercise a broader review of judges' decisions than of jury verdicts.

"``A jury's verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge's verdict-view of the same facts, learned though the judge may be in law. For reasons known well to students of American history, a finding of fact by "the twelvers" is more apt to be sound than that of one man.' Schneider v. Pomerville (1957), 348 Mich 49, 54."