Leave to appeal denied as to both defendants July 8, 1969.
R.B. BURNS, J.
Defendants appeal from a judgment entered upon a jury verdict for plaintiff. The basic facts of this case have been concisely set forth in Vannoy v. City of Warren (1965), 2 Mich.App. 78. 80:
"Plaintiff's deceased husband was an employee of the Nelson M. Sharrow Excavating Co., Inc., which had contracted with the defendant city of Warren to do certain work in connection with the installation of a sewer. On February 21, 1961, the plaintiff's decedent in the course of his employment descended into a manhole, was allegedly overcome by gas, and fell into 7 to 10 feet of water where he died. The plaintiff sued the city of Warren and its engineers, Johnson & Anderson, Inc., under the wrongful death statute alleging negligence on the part of each.
"Pursuant to court order, the defendants filed third-party complaints against the Sharrow Excavating Co., on the basis of an indemnity agreement."
The city contends that its affirmative defenses alleging negligence on the part of the deceased were not answered and are deemed admitted. GCR 1963, 111.5 provides that "averments in a pleading to which a responsive pleading is required * * * are admitted when not denied." An averment in the nature of an affirmative defense does not require a responsive pleading unless it expressly requests a reply. See GCR 1963, 1101.1 and 1 Honigman &
The city also contends that one of those affirmative defenses, contributory negligence, should have prevailed as a matter of law. One witness testified that it was contrary to established practice in this type of work for a man with the decedent's experience to descend a manhole without first checking for gas. However, conflicting testimony on this issue required the trial judge to submit the question to the jury.
Defendant Johnson & Anderson, Inc., argues that the cause of John Vannoy's death has not been established. This was also a question of fact, and there was ample evidence from which a jury could infer that death was caused by decedent's inhalation of methane or "sewer" gas.
In Michigan the inherently or intrinsically dangerous activity doctrine is founded upon a theory which is closely akin to, but not exactly the same as,
Whether the performance of decedent's task was inherently and intrinsically dangerous was a question of fact which the trial judge properly submitted to the jury. It is ludicrous to intimate that working in an atmosphere of deadly, tasteless, odorless and colorless gas without any protective devices is not a dangerous activity. The factual questions concerning the presence of such a gas and other circumstances surrounding decedent's employment prompted consideration of the issue by the jury. See Olah v. Katz, supra, p 116; Sun Oil Company v. Kneten (CA 5, 1948), 164 F.2d 806; and Mallory v. Louisiana Pure Ice & Supply Company (1928), 320 Mo 95.
The city of Warren also challenges the following instruction:
"Until or unless it is obvious or apparent or should reasonably have been obvious or apparent
In view of our holding that the city could not delegate its responsibility to another when involved in an inherently or intrinsically dangerous activity, the above charge was more favorable to the city than it should have been and cannot be advanced as ground of error.
The city also assigns as error the giving of the following instruction:
"The law presumes, the law creates a presumption that a person who is deceased and is not able to come to the court and testify, the law presumes that he did use due care."
This presumption of due care does not arise when there are credible eyewitnesses to the accident. Cook v. Grand Trunk W.R. Co. (1966), 3 Mich.App. 112. There was an eyewitness to most of Vannoy's actions on the day of his death. The court did consider the legal effect of his testimony. This becomes readily apparent if the above fraction of the relevant instruction is quoted in context:
"However, that is not what we call an absolute presumption. That is rebuttable presumption which means the presumption may be overcome by evidence to the contrary. So in the absence of evidence to the contrary you have a right to presume that Mr. Vannoy was not negligent. However, if you think there is evidence which disproves that or tends to disprove it, then you will consider that evidence and you will weigh that evidence and weigh it
Johnson & Anderson claims the trial court erred by submitting the following instructions to the jury:
"The duties owed by Johnson & Anderson to Mr. Vannoy were these — to make those inspections which a reasonably, competent engineer would make at such times and in such manner as a reasonably competent engineer would make under the same or similar circumstances. When I say same or similar circumstances I mean existence of another contract such as Sharrow contractor doing the work. I mean an agreement such as we have here. The second duty Johnson & Anderson owed to Mr. Vannoy was to see obvious derelictions of duty by the contractor, the Sharrow Company. They had a duty to see those derelictions that a reasonably competent engineer would see and to stop the work or order changes that a reasonably competent engineer would order stopped or changed."
The contract between the city of Warren and Johnson & Anderson states in part:
"Whereas the said party of the first part requires surveys, plans and specifications for said project and engineering supervision of its construction, and
"Whereas the parties of the second and third part are registered engineers, qualified to make such surveys, develop plans and specifications and to supervise construction of said project."
The contract documents for the sewer separation program were prepared by Johnson & Anderson, Inc. Under the terms of these documents the engineers, Johnson & Anderson, Inc., had broad authority
The documents contemplated the danger of gas and provided means of ventilation except where other methods were approved by the engineer. The contractor was directed to employ proper and approved means of detecting gas. There was testimony, although disputed, that gas had been present in the shaft, as well as sand and water, when this portion of the project was temporarily abandoned in 1960.
As stated in Associated Engineers, Inc. v. Job (CA 8, 1966), 370 F.2d 633, 645:
"We do not underestimate the difficulty and perhaps the closeness of this issue. The contract language is not so clear as it might be. Perhaps it would have been helpful had the record contained evidence of the manner in which these REA form contracts in the past have been construed by these and other parties. In the absence of evidence of that kind, we are reduced to linguistic analysis with some assistance from cases construing similar agreements.
"We feel that the engineer, Associated, in agreeing to supervise the construction of the project, undertook more than an obligation to assure that the end product conformed to specifications. It was to see that construction was `expeditious and economical'; it was to supervise the `manner' in which materials were incorporated; it was to determine whether the owner's interest required that any employee of the
"Each of these provisions imposes upon the engineer an obligation to do more than assure conformity to specification."
In our opinion it was not error for the trial court to submit to the jury the question of Johnson & Anderson's responsibility to perform reasonable inspections.
The other claims of error raised by the appellants involve the submission of issues to the jury and the court's instructions regarding those issues. Due to our foregoing rulings, these questions do not require discussion.
Plaintiff also filed a cross-appeal claiming that the trial court erred by not computing interest on the judgment from July, 1962, the date of the filing of the complaint (declaration), in accordance with CLS 1961, § 600.6013, as amended by PA 1965, No 240 (Stat Ann 1968 Cum Supp § 27A.6013). This specific issue has been ruled upon by this Court in Swift v. Dodson (1967), 6 Mich.App. 480 and Ballog v. Knight Newspapers, Inc. (1967), 7 Mich.App. 273, contrary to the plaintiff's position.
Judgment affirmed. No costs, neither party prevailing in its entirety.
LESINSKI, C.J., and FENLON, J., concurred.
"Q. Now, when you got to the manhole what did you and Mr Vannoy do, Mr. Cruny? * * *
"A. He got approximately 40, 45 feet deep and he started back up He said, `Something's wrong down here. I can't make it.' He got approximately, I would say, halfway up, about 25, 30 feet and fell out of sight. So, I run over to the crane approximately 200 feet to the next shaft. It had a rope on it and I cut the rope off to try and save that man.
"So, the other boy come in, Mr. Furlong. He asked me what happened; so, I told him. He said, `I'm going to save that man.' He went down, see. He got way down there about 40, 45 feet, too, see, and he started back up. He said, `I can't make it, John. Throw me a rope.' So, he got maybe 12, maybe 15 feet from the top and I ran down the ladder myself and I'm holding him with one arm. He weighed about 220 pounds, see I got him around the waist and told one of the truck drivers to throw down the rope. Nobody could have saved him and he stiffened out and he fell and down he went. And I looked and there was nothing on top of myself.
"Q. Did you have any difficulty breathing down at the 10, 12-foot level?
"A. Yes. * * *
"Then, the fire department came * * * They went down [with] gas masks on. I think it was one fireman that was overcome because they put him in a truck and took him away quick."
Firemen also testified as to their usage of oxygen or gas masks in rescue efforts, and an associate professor of geology at Wayne State University indicated that gas had been present in similar geographical areas.