Coles v. Galloway ( 1967 )

7 Mich. App. 93 (1967) 151 N.W.2d 229

COLES
v.
GALLOWAY.

Michigan Court of Appeals.

Leave to appeal denied August 23, 1967.

Leitson, Dean, Dean, Abram & Segar, for plaintiffs.

Gault, Davison & Bowers, for defendant Harold Draper.

Leave to appeal denied August 23, 1967. See 379 Mich. 776.

HOLBROOK, P.J.

On the night of April 25, 1961, plaintiffs, Bernice Coles and Pamela Coles, were passengers in a station wagon being operated by Commodore Coles in an easterly direction on Lapeer road in the city of Flint, Michigan. Plaintiff Bernice Coles was seated in the right front passenger seat. Plaintiff Pamela Coles occupied the rear seat directly behind the driver and next to the left rear door. Lapeer road, a paved two-lane street, was wet due to rain that had fallen that evening.

Defendant Michael Galloway was driving an automobile owned by defendant, George Galloway, in a westerly direction on Lapeer road. Defendant Draper was driving an automobile in an easterly direction on Lapeer road.

Plaintiffs' station wagon was struck on the left side by defendant Galloway's car, causing the station wagon to stop in a position blocking eastbound traffic on Lapeer road where it was struck on the left side by defendant Draper's car. Commodore Coles estimated that the time between impacts was 6 or 7 seconds.

Upon a jury trial on the merits a verdict was returned in favor of plaintiff, Pamela Coles, in the amount of $30,000 and plaintiff, Bernice Coles, in the amount of $750, jointly and severally, against both defendants. Only defendant Draper appeals.

Defendant raises several issues on appeal, the first of which is that there was no evidence to show that defendant Draper caused or contributed to Pamela Coles' injuries and therefore the court should have granted the motion for judgment notwithstanding the verdict. Since defendant Draper raises no question pertaining to the jury's determination of his negligence, we limit our discussion to whether or not his negligence could have been a proximate cause of the injury to plaintiffs.

Simply stated, the situation is this: Pamela Coles has suffered injuries as a result of two successive collisions approximately 6 or 7 seconds apart. Was one impact solely responsible for the injuries suffered or did both impacts contribute to them?

These are properly matters for jury consideration and their findings, if sustained by competent evidence, must be affirmed.^[1] If the jury finds that the injuries suffered were indivisible and that they were caused by the combination of the two impacts, then both defendants are jointly and severally liable.^[2]

The applicable rule of law is stated in Meier v. Holt (1956), 347 Mich. 430, 448:

"If there is competent evidence showing, or from which a reasonable inference may be drawn, that the negligence of the second tort-feasor was a proximate cause of plaintiffs' injuries or any part or aggravation of them, that evidence should go to the trier of the facts for determination, no matter how difficult, of that question of fact * * * and, if it finds in the affirmative, for determining which or what part of them and fixing the amount of damages. * * * If there is no such evidence, the case should not go to a jury to guess or speculate on the question, but, instead, the case should be dismissed by the court as to the second tort-feasor. * * * Whether there is such evidence is not a question of fact for the jury, but of law for the court. * * * Furthermore, the question for the court is not merely whether there is literally no evidence, but whether there is any upon which a jury can properly find a verdict for the party producing it upon whom the burden of proof is imposed."

To answer defendant's first contention, the record must be examined in order to determine whether or not competent evidence was introduced to the jury from which a reasonable inference could be drawn showing that the negligence of defendant Draper was a proximate cause of plaintiffs' injuries. Witnesses Commodore Coles, Bernice Coles, Michael Galloway, Herbert Bondarenko and William E. Billings testified that an impact occurred between the plaintiffs' automobile and defendant Draper's automobile. Witness Billings was qualified as an accident reconstruction expert. It was his opinion, based on a study of photographs taken by the investigating police officer of the cars and their damage and positions subsequent to the accident, that the Coles station wagon was struck by the Draper car in the left rear fender. As a result of this collision, the right front bumper of the Draper car was pushed back almost to the tire, if not into the tire. Also there was a crimping of the side of the front right fender of the Draper automobile. This caused a breakage of glass in the rear triangular panel of glass on the Coles' station wagon. This glass was shattered, it did not break out. Dr. Lester Frank Adams testified (by way of deposition) that he treated Pamela Coles after the accident. He stated:

"The various wounds were debrided and cleaned of their contained bits of numerous pieces of glass and of paint from the body of the car in which she was injured. This was very tedious as there were numerous small pieces still in the wound and this procedure occupied about 45 minutes."

Plaintiff, Bernice Coles, testified that she did not discover the injury to Pamela Coles until after the second (Draper) impact. Defendant Draper testified that as a result of the accident he suffered a brain concussion.

In our judgment this testimony raises a reasonable inference that Draper's negligence was a proximate cause of the injuries sustained by the plaintiff, therefore the question of whether or not Draper's negligence was a proximate cause of plaintiff's injuries was properly submitted to the jury. The court did not err in denying defendant's motion for judgment notwithstanding the verdict.

The defendant next contends that errors were committed by the trial court during the course of the trial which should result in a new trial for all defendants. He asserts that the trial court erred in:

A. Permitting two witnesses to testify in behalf of plaintiffs as to which witnesses plaintiffs gave no notice prior to trial of proposed offer of testimony.

B. Permitting an investigating police officer to testify as to matters of expert opinion.

C. Stating a preliminary instruction to the jury as to weight to be given to expert opinion testimony at the conclusion of testimony by defendant Draper's expert witness, not having previously given such instruction as to expert testimony offered by plaintiffs' witnesses.

D. Its instruction to the jury that the verdict as to one plaintiff must be consistent as to the other plaintiff.

E. Its instruction to the jury that any uncertainties existing as to determination of damages should be decided in favor of the plaintiffs.

A. Witnesses Bondarenko and Billings were allowed to testify at the trial of this cause even though their names did not appear on the witness lists given by plaintiffs' counsel to defendant's counsel.

The Genesee county circuit court rules require that all witnesses who are to testify at the trial be listed and further that said lists be delivered to opposing counsel. The basis for this local rule procedure is GCR 1963, 301. The purpose of this rule, as in the general theory of the pretrial proceedings as contained in the Michigan General Court Rules, is to eliminate the element of surprise at trials.

In the present case, Officer Bondarenko was the police officer who investigated the accident and his name appeared on the police reports. Defendant cannot claim that he was surprised by his appearance at the trial.

Witness Billings was called by plaintiff as a rebuttal witness. Defendant by calling an accident reconstruction expert to testify could reasonably expect that plaintiff would introduce evidence to rebut this testimony.

In allowing these witnesses to testify, the trial court was exercising its discretion. Unless a clear abuse thereof can be shown, its ruling must stand. See Snyder v. New York Central Transport Company (1966), 4 Mich. App. 38.

We find that in the circumstances of this case the trial court was not guilty of a clear abuse of discretion.

B. Sergeant Herbert Bondarenko, one of the police officers who investigated the accident, testified at the trial. He produced police photographs taken during the investigation of the accident. He testified as to where the automobiles were after the accident; the size and location of skid marks; the location of piles of debris and which car caused each pile of debris. The defendant contends that this latter testimony was opinion testimony and could only be received if the sergeant was qualified as an expert witness.

The trial court, on the basis of his testimony that he was a supervisor of traffic since 1960, he had accident investigation training, he instructed others in the work of accident investigation, he investigated more than 200 or 300 accidents a year and in addition in his capacity as a supervisor, he reviews a thousand accidents a year, ruled that the witness qualified as an expert and could give his opinion as to which car caused what pile of debris.

In People v. Hawthorne (1940), 293 Mich. 15, 23, the court stated: "The determination of the qualifications of an expert is a question for the trial judge and we entrust the matter to his discretion. We interfere only to correct an abuse."^[3]

C. At the conclusion of Dr. Manos' testimony, the court instructed the jury on the weight to be given to expert testimony. Defendant does not contend that the content of the instruction was error. He does contend that the timing of the trial court in giving it was prejudicial. The trial court repeated this instruction prior to the submission of this case to the jury. GCR 1963, 516.3 provides that the trial court may give preliminary instructions at any time during the course of a trial in order to "aid the jury to understand the proceedings and to arrive at a just verdict."

We find no abuse of discretion on the part of the trial court in giving the preliminary instruction at the time he did.

D. and E. In defendant's final contention on appeal, he claims reversible error in part of the trial court's instructions to the jury. It appears to this Court that the instructions taken as a whole were a proper statement of the law applicable to this case.

Affirmed. Costs to appellees.

FITZGERALD and J.H. GILLIS, JJ., concurred.

NOTES

[1] Moore v. Strong (CA 10, 1966), 360 F2d 71. Annotation entitled "Apportionment of damages involving successive impacts by different motor vehicles," 100 ALR2d 16, 119; Maddux v. Donaldson (1961), 362 Mich. 425; Watts v. Smith (1965), 375 Mich. 120.

[2] It is the law in Michigan that "where the negligence of 2 or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action." 1 Cooley, Torts (3d ed), p 247. See, also, Justice SOURIS' opinion in Bunda v. Hardwick (1965), 376 Mich. 640, 670, 671.

[3] Snyder v. New York Central Transport Company supra; LaFave v. Kroger Company (1966), 5 Mich. App. 446; and an annotation in 66 ALR2d 1048, entitled "Admissibility of opinion evidence as to the point of impact or collision in motor vehicle accident case."