Sayles v. Lilak & Moore, Inc. , 32 Mich. App. 721 ( 1971 )

32 Mich. App. 721 (1971) 189 N.W.2d 118

SAYLES
v.
LILAK & MOORE, INC.

Docket No. 9854.

Michigan Court of Appeals.

Decided April 23, 1971.

Sinas, Dramis, Brake & Turner, P.C., for plaintiff.

Clare L. Gillett, for defendant.

Before: FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.

Leave to appeal denied, 385 Mich. 764.

BRONSON, J.

This appeal arises out of an accident which occurred on April 29, 1967. Plaintiff had hired defendant, an excavating contractor, to do certain grading and excavating on the plaintiff's property. Defendant's employee, Donald E. Bergman, was operating a bulldozer for the purpose of removing trees from the plaintiff's property. While the bulldozer operator was pushing on the bottom end of one of the fallen trees, the top end pivoted in the opposite direction and struck plaintiff, breaking one of plaintiff's legs.

The issues raised at trial related to the alleged negligence of defendant's employee as well as to the alleged contributory negligence of the plaintiff. At the close of the parties' proofs, defendant moved for a directed verdict, alleging plaintiff's contributory negligence as a matter of law. The trial judge reserved decision on defendant's motion and submitted the case to the jury. The jury returned a verdict of no cause for action. Plaintiff appeals as of right from the trial court's denial of plaintiff's motion for new trial.

On appeal plaintiff alleges that the trial judge committed numerous errors in his charge to the jury. Only one alleged instructional error need be considered. The record discloses that the trial court failed to instruct the jury that defendant has the burden of proof in attempting to establish plaintiff's contributory negligence. A review of the trial court's instructions leaves the inference that the plaintiff must establish that he was free from contributory negligence.

Although plaintiff's failure to request the instruction on burden of proof and failure to properly object as required by GCR 1963, 516 would usually preclude consideration on appeal, we shall, under these circumstances, consider the issue to prevent a manifest injustice. As the Michigan Supreme Court stated in Hunt v. Deming (1965), 375 Mich. 581, 585:

"This is not to say that this Court may not, in unusual circumstances, and to prevent manifest injustice, take note of instructions which err with respect to basic and controlling issues in a case even though objection thereto was not made before the jury retired. * * * It is to say, however, that the Court will exercise its discretion in this fashion but sparingly."

In the instant case, one of the controlling issues related to the allegation of plaintiff's contributory negligence. Under Michigan law, the defendant has the burden of proving the plaintiff's contributory negligence. We hold that, in view of the evidence presented, the trial judge had the duty, even absent request, to so instruct the jury.

Reversed and remanded. Costs to plaintiff.

All concurred.