Narring v. Sears, Roebuck & Co.

229 N.W.2d 901, 59 Mich. App. 717, 1975 Mich. App. LEXIS 1403
CourtMichigan Court of Appeals
DecidedMarch 24, 1975
DocketDocket 18162
StatusPublished
Cited by6 cases

This text of 229 N.W.2d 901 (Narring v. Sears, Roebuck & Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Narring v. Sears, Roebuck & Co., 229 N.W.2d 901, 59 Mich. App. 717, 1975 Mich. App. LEXIS 1403 (Mich. Ct. App. 1975).

Opinions

J. H. Gillis, P. J.

On July 21, 1972, plaintiff fell into a grease pit in the service garage at one of defendant’s stores, and was badly injured. Plaintiff brought this action, alleging that defendant’s negligence in operating this grease-pit area without proper safeguards was the proximate cause of his injuries.

Plaintiff testified as follows: He had entered defendant’s garage seeking shelter from the rain, and was waiting there for a friend to pick him up and give him a ride home. He was standing just inside the garage with several other people when three women and a child came into the garage, crowding plaintiff and the others backwards. When plaintiff stepped back to make room for the newcomers, he fell backwards into the grease pit.

Other witnesses testified that plaintiff walked into the garage, and, while lighting a cigarette, continued walking up to the edge of the grease pit, and fell into the grease pit face forward.

At the close of plaintiff’s case, defendant moved for a directed verdict on the basis that the evidence showed that plaintiff had been contributorily negligent as a matter of law. The trial court denied this motion and the jury returned a verdict [720]*720in favor of plaintiff, awarding him $30,000 damages. Defendant appeals as of right.

Defendant raises several issues for our consideration, only one of which merits extended discussion. Additional facts will be set forth as are necessary to the discussion of these issues.

Defendant’s most meritorious claim of error is that the trial court erred in allowing plaintiff to introduce testimony concerning the occurrence of previous grease-pit accidents which arose from causes different from the cause of plaintiffs accident. Defendant further contends that the trial court erred in not declaring a mistrial on the basis of this testimony and plaintiffs counsel’s frequent references throughout the trial to previous instances of persons falling into the grease pit.

Plaintiff’s counsel said, in his opening statement:

"[0]ur proofs will show that Sears Roebuck knew of this situation on their place of business because they had other employees and people that had fallen into the pit area.”

Defendant objected to this statement, and moved for a mistrial. The trial court asked plaintiffs counsel if evidence was going to be produced to support this statement. Plaintiff’s counsel assured the court that the deposition testimony of one Anthony Hobbs, a Sears garage employee at the time of the accident, would support plaintiff’s claim. On the strength of these assurances, the trial court denied defendant’s motion for a mistrial. Twice more in his opening statement, plaintiff’s counsel made reference to previous accidents, saying the proofs would show "that other employees have fallen into the- area” and that "they [defendant] have had problems when in the past people had fallen into the pit”.

[721]*721During plaintiffs attorney’s cross-examination of Marshall Dyke, a Sears sales superintendent, the following testimony was given:

”Q. Béfore July 21st, 1972, were there any incidents reported to you of persons falling into the pit, either employees or customers at this store?
”A. No, sir.
"Q. Have you had occasion to read Mr. Hobbs’ depositions? * * * He indicated, did he not, in his deposition, which was sworn testimony, under oath, that there had been employees that had fallen into the pit and other personnel?
"Q. In your capacity as sales superintendent at Sears were you aware of any incidents involving employees or other persons that were in the garage area that fell into the pit before July 21st, of 1972?
"A. No, sir.
"Q. So, when Mr. Hobbs, whose deposition you read, indicated that there were other employees that had fallen into the pit that he had witnesses, you don’t disagree with that even though—
”A. I did not read that far into the deposition.
"Q. Well, let me have you take a look at page 39 and see if that is what he says.
’A. It says that he never seen anyone fall into the pit.
”Q. What did he say?
’A. 'Saw one of the guys slipped in there once in a while.’ ”

At this point defense counsel objected to the use of Mr. Hobbs’ deposition as a basis for cross-examination of Mr. Dyke. He argued that Mr. Hobbs’ statements concerning previous accidents were hearsay, since Mr. Hobbs had testified at the deposition that he had no- personal knowledge of any previous accidents. The trial court overruled the hearsay objection, apparently on the rationale that [722]*722Mr. Hobbs’ deposition testimony with respect to prior accidents was ambiguous and capable of being received as nonhearsay. Plaintiffs counsel once more asked Mr. Dyke if he was aware "of any incidents which arose where people had fallen into the grease-pit area” prior to plaintiffs accident, to which Mr. Dyke replied in the negative.

On cross-examination of Anthony Hobbs by plaintiffs counsel, the following testimony was given:

"Q. And you have seen people fall in the pit before, haven’t you?
'A. No, I have not. * * * No, I have not seen anybody fall into that pit before.
”Q. You never have. Do you remember your deposition being taken?
'A. I remember. I never said I seen anybody fall. I said I heard.
"Q. You are aware, aren’t you, sir, since you worked at Sears, that other people have fallen into the pit?
’A. I go by what I heard.
”Q. But, were you aware from talking with other employees that other people had fallen into that pit?
'A. Yes, I was.
”Q. Sure you were.”

This line of questioning was objected to at its beginning by defense counsel; however, no basis for the objection was specified.

On redirect examination of Mr. Hobbs by defense counsel, the testimony below was elicited:

"Q. You indicated, I think, on cross-examination that you had not seen anyone else fall, but that you had heard, I think, of other people falling into the pits?
'A. Right.
[723]*723"Q. Was that more than once that people were involved?
'A. All I heard was just once.
"Q. Once?
"A. Right.
"Q. Do you have any idea whether this person was an employee or customer?
'A. It was an employee.
”Q. Was that when you were working there?
"A.

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Related

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387 N.W.2d 388 (Michigan Court of Appeals, 1986)
Masson v. Kansas City Power & Light Co.
642 P.2d 113 (Court of Appeals of Kansas, 1982)
Kozlowski v. Sears, Roebuck & Co.
73 F.R.D. 73 (D. Massachusetts, 1976)
Smith v. E. R. Squibb & Sons, Inc.
245 N.W.2d 52 (Michigan Court of Appeals, 1976)
Narring v. Sears, Roebuck & Co.
229 N.W.2d 901 (Michigan Court of Appeals, 1975)

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Bluebook (online)
229 N.W.2d 901, 59 Mich. App. 717, 1975 Mich. App. LEXIS 1403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/narring-v-sears-roebuck-co-michctapp-1975.