BURKE
v.
BOMBARDIER, LTD
Docket No. 53287.
Michigan Court of Appeals.
Decided October 26, 1981.Fred E. Foster, for plaintiffs.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by William P. Cooney and Raymond W. Morganti), for defendant.
Before: R.B. BURNS, P.J., and ALLEN and T. GILLESPIE,[*] JJ.
PER CURIAM.
Plaintiffs initiated this products liability action against defendant-manufacturer of Ski-doo snowmobiles. Plaintiff Bobby Burke had been severely injured when he was struck in the mouth by a single strand of barbed wire. The jury returned a verdict in his favor in the amount of $150,000 and in favor of plaintiff Marlene Burke in the amount of $50,000. Defendant appeals.
Mr. Burke (hereinafter plaintiff) and his son took the snowmobile out for a ride approximately *185 three to four weeks after purchasing it. Because this was the break-in period for the snowmobile, they were travelling at a speed of 10 to 20 miles per hour on this bright and clear morning of November 27, 1970.
As they were proceeding along, plaintiff felt an impact in his mouth, and he was thrown off the snowmobile. It was not until after the impact occurred that he realized he had been struck by a single strand of barbed wire. He landed approximately 5 feet behind the wire, and his helmet landed 15 feet from the wire. The wire cut him from ear to ear, sheared off two teeth, and permanently severed two-thirds of his tongue.
Plaintiff was in a sitting position on the snowmobile and had been looking through the windshield when the accident occurred. The windshield had scratches on it approximately four to five inches from the top.
Plaintiff testified at trial that he thought the wire hit him at a speed faster than he was travelling when it came off the windshield. However, on cross-examination he stated that he assumed it came back at this greater rate of speed, that he really did not know, and that his testimony was based only upon the impact he experienced and not upon any testing or observation on his part.
Plaintiffs' theory was that the height of the windshield was a design defect which caused the wire to be propelled into plaintiff's mouth and accelerated the speed of the wire.
Plaintiffs' expert witness testified primarily regarding the visibility permitted by the windshield, but he did state that the windshield was higher than it needed to be to protect against wind.
At the close of plaintiffs' case, defendant moved for a directed verdict on this "propellant" theory. *186 The trial court denied the motion, reasoning that the jury could find for plaintiffs on the propellant theory on the evidence presented: the scratch marks on the windshield, plaintiff's testimony, and the severity of the injuries. Defendant claims that the trial court erred in failing to direct a verdict on this theory.
In reviewing a trial court's decision on a motion for a directed verdict, this Court will consider the plaintiff's proofs and reasonable inferences therefrom and view them in the light most favorable to the plaintiff. Silisky v Midland-Ross Corp, 97 Mich. App. 470; 296 NW2d 576 (1980). A motion for a directed verdict tests whether or not the plaintiff has made out a prima facie case. Beals v Walker, 98 Mich. App. 214; 296 NW2d 828 (1980).
Plaintiff had the burden of showing that the wire was propelled into his mouth. This could be shown by direct or circumstantial evidence. The scratch marks on the windshield indicated that the wire did come in contact with it. But plaintiff's testimony that the wire was coming back faster than he was travelling was without foundation. Finally, his injuries, which we agree are severe, allow for no reasonable inference that the wire was propelled into his mouth. We have no way of determining what injuries anyone would sustain as a result of being hit in the mouth by a wire while travelling at 10 to 20 miles per hour. It was essential for plaintiffs to present some proof as to the type of injuries one might expect from this kind of contact. Had evidence been presented that one could not sustain the injuries suffered by plaintiff from a single collision with an unpropelled wire while travelling at this speed, in combination with the other evidence presented, plaintiffs would have made out a prima facie case.
*187 Such proof not having been presented, the jury was left to speculate as to the propensity of the windshield to propel the wire into plaintiff's mouth. This type of speculation or conjecture is not permissible, and thus defendant's motion for a directed verdict on this theory should have been granted. Kupkowski v Avis Ford, Inc, 395 Mich. 155; 235 NW2d 324 (1975).
Since plaintiffs' proof on this theory simply showed that an accident happened, we accordingly reverse the decision of the trial court. Because plaintiffs had alternative theories which could support the verdict in their favor, we remand for a new trial of those issues.
Reversed and remanded for a new trial.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.