York v. James ( 1973 )

46 Mich. App. 498 (1973) 208 N.W.2d 185

YORK
v.
JAMES

Docket No. 13486.

Michigan Court of Appeals.

Decided April 24, 1973.

Church, Wyble, Kritselis & Van Duzer (by J. Richard Robinson), for the plaintiff.

Fraser, Trebilcock, Davis & Foster (by Robert W. Townsend and Peter L. Dunlap), for the defendants.

Before: BRONSON, P.J., and McGREGOR and DANHOF, JJ.

Leave to appeal denied, 390 Mich. 783.

McGREGOR, J.

This is an automobile-pedestrian accident case.

The facts clearly establish that the defendant Robert James, the driver of a motor vehicle, while emerging from a driveway, struck the plaintiff, a pedestrian on the sidewalk. Defendant International Business Machines was made a party defendant to plaintiff's claim that in operating the motor vehicle, defendant James was acting within the scope of his employment with said corporation.

During the course of the trial, plaintiff called upon a deposition of the defendant for purposes of cross-examination pursuant to GCR 1963, 302.4(2). The deposition was read in its entirety to the jury. Certain inconsistencies were contained in this deposition: at one point, defendant claimed that his car was stopped when he first observed plaintiff; then, a few lines later, defendant claimed that the car was moving when he first saw the plaintiff. The trial court, after the deposition was read into the record, refused to allow plaintiff's attorney to question the defendant, whom he had called in person for purposes of cross-examination concerning this inconsistency or any other matter contained in the deposition. Subsequently, under examination by his own attorney, defendant James claimed that he had just started moving when he observed the plaintiff running across his path, but could not stop in time to avoid hitting her.

The trial court refused to instruct the jury with respect to gross negligence.

The jury returned a verdict of no cause of action in favor of the defendants.

The first issue on appeal is whether the trial court erred in refusing to permit plaintiff to cross-examine defendant as to statements contained in the deposition.

In Ruhala v Roby, 379 Mich. 102, 116-117 (1967), the Court held that:

"[T]he [trial] court was in error in ruling that the plaintiff was precluded from cross-examining Burditt under the statute. Even the existence of this second error, however, does not require reversal. It must again be determined whether the error was reversibly prejudicial. A separate record, not in the presence of the jury, was made, in which the plaintiff was permitted to pursue the cross-examination of Burditt as fully as he wished."

In the instant case, the trial court's ruling did not preclude plaintiff from cross-examining defendant, it merely limited that cross-examination to matters which had not been covered in the deposition. It is well established that a trial court has discretion as to limiting questions on cross-examination. See In re Sparks' Estate, 198 Mich. 421 (1917). Since the deposition had already established that defendant had made inconsistent statements as to whether he was stopped or moving when he first saw plaintiff, any further cross-examination would indeed belabor the point and be cumulative. As such, there was no abuse of discretion on the part of the trial court. The trial court's ruling does not constitute reversible error.

The second question on appeal is whether the trial court erred in refusing to instruct the jury as to gross negligence.

Plaintiff requested the following instruction:

"Plaintiff charges the defendant with willful and wanton misconduct.

"The term `willful and wanton misconduct' means more than the failure to use ordinary care. It means conduct which shows actual or deliberate intention to harm or a reckless disregard for the safety of others in the face of circumstances involving a high degree of danger.

"Even if you decide plaintiff was contributorily negligent, that will not defeat plaintiff's claim for damages, if you also decide the defendant's conduct was willful and wanton, because contributory negligence is no defense where there is willful and wanton misconduct by the defendant." Michigan Standard Civil Jury Instructions § 14.02.

Gross negligence has been defined as follows:

"Gross negligence, such as authorizes a recovery for a negligent injury notwithstanding plaintiff's contributory negligence, is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger and therefore was only the remote cause of the injury, while the subsequent supervening negligence of the defendant was the proximate cause." 18 Callaghan's Michigan Civil Jurisprudence, Negligence, § 17, p 232; See also Gibbard v Cursan, 225 Mich. 311 (1923); LaCroix v Grand Trunk Western R Co, 379 Mich. 417 (1967).

In defendant's deposition which was read into evidence, defendant stated at one point that when he first saw the plaintiff he stopped his car and that plaintiff was in front of his car; he claimed later that his car was moving when he first observed the plaintiff. Nevertheless, defendant's statement that he was stopped when he first observed plaintiff and that she was then in front of his car, was evidence in the case.

The evidence clearly raises a question of fact as to whether the defendant struck plaintiff after he was aware that plaintiff was in a position of danger but nevertheless drove his car with reckless disregard of the consequences of his act.

From the jury's verdict of no cause of action, we cannot determine whether they found that defendant was free from negligence, or that plaintiff was barred from recovery because of contributory negligence. If the jury's verdict was based on a finding that plaintiff was contributorily negligent, the question of gross negligence on defendant's part could change this verdict.

As there was a question of fact, the trial court should have given the requested instruction, so as to allow the jury properly to resolve that question. See Tien v Barkel, 351 Mich. 276, 283 (1958); Washington v Jones, 386 Mich. 466, 471 (1971).

Reversed and remanded.

All concurred.