Fitzcharles v. Mayer ( 1938 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiff sued defendants to recover damages for injuries sustained in an automobile collision. From judgment for plaintiff, defendants Adcock, Mayer and Roberts appeal.

Adcock was the driver of a taxicab owned and operated by Mayer and Roberts, copartners. At the time of the accident he was driving one of their taxicabs on company business. Plaintiff was driving a Ford coupe and defendant Harper an Oldsmobile. The collision resulting in plaintiff's injuries occurred December 31, 1936, on the paved highway between St. Joseph and Benton Harbor. In plaintiff's car with him were his wife and two sons. He was driving westerly between the north street car tracks and the northerly edge of the pavement and could see approximately 1,000 feet ahead. Defendant Harper was driving easterly at from 50 to 60 miles an hour in violation of law. The taxicab had been driven from Benton Harbor with a passenger to the St. Joseph Fisheries on the north side of the road 165 feet west of the river bridge. It stopped at the Fisheries' office which the passenger visited, and after the passenger re-entered the taxicab Adcock started the cab. There was testimony plaintiff saw the taxicab and saw Harper's car coming at a high rate of speed. The taxicab made a U-turn ahead of Harper's car which the testimony indicates was going about 60 miles an hour and Harper, in trying to avoid hitting the taxicab, swerved his car to the left and hit plaintiff's car head on causing plaintiff's injuries.

Plaintiff claims the accident was caused by the concurring negligence of Harper and Adcock. Appellants claim Harper's negligence was the sole cause of the accident and that plaintiff was negligent in not observing defendant Harper and turning to the right to avoid the collision.

At the close of plaintiff's case, appellants made a motion for directed verdict on the ground plaintiff was guilty of contributory negligence in driving with four persons in the seat, failing to turn to the right when a collision was imminent, and because there was no proof of appellants' negligence and the accident occurred by reason of the concurring negligence of Harper and plaintiff and it could not be reasonably anticipated a collision would result from Adcock's action. Defendant Harper moved for a directed verdict on the ground the proof showed he was driving carefully and Adcock's U-turn created a sudden dangerous emergency requiring immediate action and that in seeking to avoid collision with the taxicab his car collided with that of plaintiff; that plaintiff was guilty of contributory negligence in not turning to the right, in driving with four in the seat, and with but one hand on the steering wheel. The court reserved decision under the Empson act (3 Comp. Laws 1929, § 14531 et seq. [Stat. Ann. § 27.1461 etseq.]), defendants put in their testimony, the motions were renewed at the close of all the testimony, and the case submitted to the jury resulting in a verdict for plaintiff. There was motion for judgment notwithstanding the verdict, which was overruled, and judgment entered.

If appellants' motion, made at the conclusion of plaintiff's testimony, was good, it should have been granted. 3 Comp. Laws 1929, § 14307 (Stat. Ann. § 27.1036); Johnston v. Cornelius,193 Mich. 115. A motion by defendants was made at the conclusion of all the testimony for a directed verdict, and in considering the case we must take the testimony in its aspect most favorable to plaintiff. Heintzelman v. Railroad Co.,260 Mich. 688. The same rule applies in the consideration of the case on appeal. Patterson v. Thatcher, 273 Mich. 597; Berke v.Murphy, 280 Mich. 633.

Plaintiff was where he had a right to be and it was a question of fact whether he was guilty of contributory negligence. Lawrence v. Bartling Dull Co., 255 Mich. 580; Patterson v. Wagner, 204 Mich. 593. It is not shown the number of passengers in the front seat, or the fact that at the time of the impact plaintiff had but one hand on the wheel, contributed to the injury. Whether such action upon the part of plaintiff did so or not was a question of fact for the jury. It could not be said as a matter of law plaintiff had sufficient opportunity to turn to the right and avoid the collision. There was no proof plaintiff's having four persons in the seat had any causal connection with the collision.Syneszewski v. Schmidt, 153 Mich. 438.

There was proof Adcock saw Harper's car coming toward him at 60 miles an hour but took a chance on making the U-turn in front of him. The question, whether he should have taken that chance, was for the jury. Conely v. McDonald, 40 Mich. 150;Mynning v. Railroad Co., 64 Mich. 93 (8 Am. St. Rep. 804);Chamberlain v. Detroit Stove Works, 103 Mich. 124; Yacobian v. Vartanian, 221 Mich. 25; Burt v. Railway Co., 262 Mich. 204.

We cannot say the court erred in denying a new trial.Patterson v. Thatcher, supra.

To hold appellants, there must have been testimony indicating Adcock ought reasonably to have foreseen a probability of accident as a result of making the U-turn in front of the speeding Harper. Charlebois v. Railroad Co., 91 Mich. 59;Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113.

It is not necessary the collision with plaintiff's automobile be the usual, necessary and inevitable result of Adcock's action. 45 C.J. pp. 911, 913, 914. We discover no error in the refusal of the trial court to give defendants' request to charge, nor in the trial court's charge in this respect.

There may be two proximate causes of an accident.Welch v. Jackson Battle Creek Traction Co., 154 Mich. 399;Baker v. Railroad Co., 169 Mich. 609; Banzhof v. Roche,228 Mich. 36; Moffit v. Endtz, 232 Mich. 2; Camp v. Wilson, 258 Mich. 38.

The jury, under the facts, found defendants jointly liable. Under the rule established by the cases above cited, we cannot say there was error as a matter of law in its so doing.

"If a man does an act and he knows, or by the exercise of reasonable foresight should have known, that in the event of a subsequent occurrence, which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury."Tozer v. Railroad Co., 195 Mich. 662.

It is claimed Adcock had a right to rely on Harper not driving in violation of law. This is the general rule. But Adcock testified he saw Harper coming at 60 miles an hour before he attempted to make the U-turn. He had a right to assume that Harper would drive legally until, in the exercise of ordinary care, he either discovered, or should have discovered, that such was not the fact. Corey v. Hartel,216 Mich. 675; Tregonning v. Castantini, 243 Mich. 233; Lawrence v.Bartling Dull Co., supra.

The charge of the trial court, it is claimed, was too long and confused the jury. The case was closely tried, many questions were raised by counsel, it was sought to hold liable appellants whose taxicab did not touch either of the colliding cars, all phases of the case were covered by requests to charge and by the charge of the trial court in which, considered as a whole, we find no error. Kimball Austin Manfg. Co. v. Vroman,35 Mich. 309 (24 Am. Rep. 558); Brown v. McCord Bradfield Furniture Co., 65 Mich. 360.

It is claimed the verdict of $5,583.33 was excessive. Plaintiff suffered a fractured kneecap, was 26 years old, in good health, and had had steady employment doing heavy manual labor at $20 a week. He was in the hospital for five days, open surgery was resorted to to reduce the fracture, his leg was in a cast for 39 days after which an open cast and crutches were used for a number of weeks, various methods have been tried to eliminate stiffness in the knee joint but so for without much success. Plaintiff testified to his physical pain and suffering, loss of sleep, and his embarrassment due to lameness. There was testimony the leg might be permanently stiff, that another operation was advisable though it might not be successful, that in a few months the leg might be sufficiently limbered and loosened so it would bend almost as well as ever. He can bend his leg about 10 per cent. of the natural amount at the present time. Plaintiff is unable to follow his previous occupation. The verdict was not so excessive as to shock the judicial conscience. Stetson v.Mackinac Transportation Co., 182 Mich. 355; Roach v. Petrequin,234 Mich. 551; Cawood v. Earle Paige Co., 239 Mich. 485;DeHaan v. Winter, 265 Mich. 101; Watrous v. Conor, 266 Mich. 397; Izzo v. Weiss, 270 Mich. 372.

We find no reversible error.

Judgment affirmed, with costs to plaintiff.

WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, CHANDLER, NORTH, and McALLISTER, JJ., concurred.