Yarabek v. Brown , 357 Mich. 120 ( 1959 )

Black, J.

(after statmg the facts). The principal •question brought here is whether the trial judge should have eliminated the issue of contributory negligence from jury consideration. Having compared —at request of all counsel — Jones v. Daniels, 328 Mich 402 and its predecessor cases with Tracy v. Rublein, 342 Mich 623; and Sherman v. Korff, 353 Mich 387, we conclude that such should have been done and that the judgment of the trial court must on that account be reversed.

The distinction, made in June v. Grand Trunk Western R. Co., 232 Mich 449 (citing in support Bradley v. Interurban R. Co., 191 Iowa 1351 [183 NW 493], and Weidlich v. New York, N. H. & H. R. Co., 93 Conn 438 [106 A 323]), between the duties of front- and rear-seat vehicular passengers has, we think, passed into history by force of reasoning shown in Jones and Sherman, supra. The front-seat passenger ordinarily — and this Yarabek case is quite ordinary in such regard — is burdened in the motoring circumstances of today with no greater duty of personal vigilance than the rear-seat passenger. The reason is known to all veteran motorists.

In the early days of the automobile, and of the dirt road, motoring speeds in excess of 20 miles per hour were regarded as dangerous and foolhardy. There was both reason and occasion, then, for certain passenger participation in the action and inaction of the driver. What is more, and this factor is worthy of comparative emphasis, there usually was time — some time at least — for passenger observance and occasional warning of the driver against fancied or real perils ahead and to left or right. In extreme circumstances it was even possible that a passenger might, in the parlance of veteran railroad trainmen, safely “hit the real estate.” All these factors have now disappeared,^* principally because motoring hazards develop too fast for warning or personal action by a passenger even though he has spotted imminent danger before the driver has. As was recently made clear in Sherman, any action of a passenger, admonitory or otherwise, is apt to increase rather than decrease the swift rush of danger — if danger be imminent. “ ‘Generally,’ it was well put in a Federal case, ‘it is the duty of the passenger to sit still and say nothing. It is his duty, because any other course is fraught with danger.’ ” (Quotation from Sherman at page 395.)

Let us consider for a moment June v. Grand Trunk Western R. Co., supra, and the remaining “back seat” cases on which its rule was predicated (Bradley v. Interurban R. Co. and Weidlich v. New York, N. H. & H. R. Co., supra). In June the passenger was riding (in the back seat) in a Ford touring car. Its rate of speed was “from 6 to 10 miles per hour” as it approached the fatal grade crossing. In Weidlich the corresponding rate of speed of approach was 15 miles per hour. Today, such are starting speeds only and, however we may deplore the transition from miles per hour to feet per second in the compared speeds of motor traffic, the change appears to be a permanent one. It dictates a new view, and a plainly declared revision of earlier judicial thought, upon the question of personal contributory negligence of a motorcar passenger.

In this case of Yarabek, and granting that a plaintiff’s motion for peremptory instruction (in a negligence case) is to be judged exactly as we judge a defendant’s motion for such instruction (Parsons v. Hoffman, 352 Mich 8), we cannot find on favorable-to-defendant view of the record any proof or inference by which the question of contributory negligence should have been submitted to the jury. To make it plain, we think Mrs. Yarabek fully met, as a matter of law, her then burden of disproof of contributory negligence. This pursues the essence of our holding in Jones, supra, and places in distant setting any thought that Tracy, supra; and Mitchell v. De Vitt, 313 Mich 428; and White v. Huffmaster, 326 Mich 108, are authority for the proposition that the question of a motor passenger’s contributory negligence is always one of fact.

This is not to say that a specific factual situation may not present either a question of fact or the requirement of a directed verdict (where the issue is that of a passenger’s contributory negligence). It is to say that the ordinary case calls for elimination of the question from jury consideration. Any other ruling, in the case — as here — where moderately excessive speed of the car occupied by the plaintiff is assigned as ground for a holding or finding of contributory negligence, would place on the passenger the unseemly burden of steady duty-watch of the car’s speedometer (something which is not easy to do, with accuracy, considering the oblique view from the right); the corresponding burden-duty of constant observation of highway speed control signs, and the final duty of reproof as indicated by such watchfulness. Ye are not ready, in these times, to so burden front- or back-seat passengers.

In view of our holding, declared above, it is unlikely that other stated and counterstated questions will arise on retrial. We are constrained to say, however, that defendants’ improper effort to get across to the jury the combination of assumed affluence of the Yarabeks and the fact and duration of defendant Raymond O. Brown’s unemployment, was matched by plaintiff’s successful (and, as we have recently held [Darr v. Buckley, 355 Mich 392] quite improper) effort to inject into the case, on voir dire, the insured status of defendants. We find a nonreversible standoff here.

Judgment reversed. New trial ordered. Costs to plaintiff.

Smith, Edwards, Voelker, and Kavanagh, JJ., concurred with Black, J.

* Note the unique method of their burial in. Mitcham v. City of Detroit, 355 Mich 182, 188.