Holbrook v. Koehring Co. ( 1977 )

75 Mich. App. 592 (1977) 255 N.W.2d 698

HOLBROOK
v.
KOEHRING COMPANY

Docket No. 26062.

Michigan Court of Appeals.

Decided May 16, 1977.

Miller, Johnson, Snell & Cummiskey (by Henry L. Guikema and Michael A. Snapper), for plaintiffs.

Hillman, Baxter & Hammond (by William S. Farr and Michael D. Wade), for defendant Koehring Company.

Cholette, Perkins & Buchanan (by Edward D. Wells), for defendant Vos Equipment Company.

Before: D.E. HOLBROOK, JR., P.J., and QUINN and ALLEN, JJ.

QUINN, J.

The jury trial in this products liability case ended with a jury verdict of no cause of action. Plaintiffs appeal and we affirm.

Plaintiff Clifford Holbrook was operating a crane manufactured by Koehring Company and sold by Vos Equipment Company, the maximum lifting capacity of which was 140,000 lbs. The accident giving rise to this action occurred when plaintiff was lifting an injection molding machine that weighed 159,000 lbs.

Plaintiffs claim error because the trial court excluded some evidence concerning failure of the mechanical locks prior to the accident. This failure occurred during cold weather, a condition not present when the accident giving rise to this action occurred. There was no error, Freed v Simon, 370 Mich 473; 122 NW2d 813 (1963).

The second error asserted is the exclusion of evidence concerning the failure of the mechanical locks after the accident. This evidence concerned an event which occurred two years after the accident involved in this case. This is too remote to be relevant. We find no error, Freed, supra.

Subsequent to the accident in question, some remedial repairs were taken to correct problems with the mechanical locks. At trial, plaintiffs offered to introduce evidence to establish this fact. The third error claimed on appeal is the exclusion of this evidence. We find no error, Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976).

With respect to plaintiffs' claim of error on the exclusion of evidence concerning complaints received by the manufacturer involving similar equipment, we find that the exclusion was proper. A proper foundation as to similarity of conditions and proximity of time was not laid, Freed, supra.

Plaintiffs claim reversible error because the trial court refused to give the following requested instruction:

"Even if you find that Mr. Holbrook did misuse the crane, you may nevertheless reach a verdict in favor of plaintiffs if you also find that the misuse was reasonably foreseeable by the defendant."

It would have been error to have given the requested instruction where plaintiff attempted to lift an object 19,000 lbs. heavier than the maximum capacity of the crane, Parsonson v Construction Equipment Company, 386 Mich 61; 191 NW2d 465 (1971).

Plaintiffs requested the trial court to give SJI 15.05. As a result of the request, the jury was instructed:

"If you decide that Defendant Koehring Company was negligent and that such negligence was a proximate cause of the occurrence, it is not a defense that the conduct of a person or corporation who is not a party, or any of them to this suit, also may have been a cause of this occurrence. If you decide that the only proximate cause of the occurrence was the conduct of someone not a defendant, then your verdict should be for the defendant."

Plaintiffs now claim a reversible deviation from the wording of SJI 15.05. No objection was made to this instruction as given, and the issue is not preserved for review, Reed v Stretten, 69 Mich App 519; 245 NW2d 117 (1976).

We find plaintiffs' argument on defendants' failure to warn irrelevant because plaintiff was an experienced operator of this crane and had experienced difficulties with it similar to those here complained of.

The issue raised by Vos Equipment Company is not before us since it filed no cross appeal.

Affirmed with costs to defendants.