Taylor v. Hannon-Colvin Post 180 of American Legion , 6 Mich. App. 398 ( 1967 )

6 Mich. App. 398 (1967) 149 N.W.2d 210

TAYLOR
v.
HANNON-COLVIN POST 180 OF AMERICAN LEGION.
APPEAL re MURPHY.

Docket No. 1,681.

Michigan Court of Appeals.

Decided March 28, 1967.

Kelly, Kelly & Kelly (Philip C. Kelly of counsel), for plaintiff.

Davidson, Gotshall, Kelly, Halsey & Kohl (Konrad D. Kohl, of counsel), for defendant Murphy.

T.G. KAVANAGH, P.J.

This is an action for damages brought under the Michigan wrongful death act, CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922). Plaintiff's decedent, Edward M. Taylor, driving from Chicago to his home in Jackson, Michigan, stopped at the American Legion Post at Hudson, Michigan at about midnight. He appeared to be sober, but did not look well and said he was not feeling well. He had been afflicted with periods of faintness over a period of several months and had recently submitted to a surgical operation. He had one drink and part of a second drink and then left.

Defendant Murphy had entered the bar at about 10 p.m. the same evening, drank several bottles of beer and left about 1 a.m., approximately 15 minutes after plaintiff's decedent. Defendant's car was parked in front of the door to the bar. Decedent's car was parked next to defendant's on the right side (passenger side) of defendant's car. As he left the bar defendant approached the two cars from the front. He testified that he did not look through the opening to the parking area behind them, but that he did look down the left side of his car before entering it, and saw nothing. He further testified that upon entering his car he looked through the rear view mirror but saw nothing because it was a misty night. It had been raining and his rear window was obscured with rain and mist. Defendant did not attempt to clean off the rear window.

Defendant started his car and in backing up, he rolled over decedent's body which had been lying on the ground behind the car, thereby causing his death.

The cause was tried to a jury which returned a verdict of no cause of action. Plaintiff has appealed to this court alleging that the trial judge erred in giving his instruction to the jury and in refusing to grant plaintiff's request for instructions, and further alleging that the trial judge committed error in refusing to allow defendant to make a test of his view to the rear of his car.

Appellant assigns error to the refusal of the trial judge to give requested instructions relating to subsequent negligence, or last clear chance, and relating to defendant's duty of care.

With one exception having no significance here, appellant made no objection before the trial court to the court's refusal to give requested instructions, to its charges as given, or to any ruling of the court. Nor does she claim that she was denied opportunity to object. The Michigan court rules are explicit that on appeal a party cannot assign error to any action of the trial court unless he has made a timely objection, so that the court has had a chance to correct any alleged error before the jury retires to deliberate. GCR 1963, 516.2. See Snyder v. New York Central Transport Co. (1966), 4 Mich. App. 38.

It appears that the trial court did not indicate to appellant what action it would take with regard to the written requests, in accordance with GCR 1963, 516.1. However, the failure of the trial court to observe that rule does not excuse the parties from their duty of timely objection. The only exception to this general rule is where the trial court refused to grant the opportunity to object. Herndon v. Woodmen of the World Life Insurance Society (1965), 1 Mich. App. 141. But here appellant had adequate opportunity to object.

Even had timely objection been made we find no prejudicial error. "The jury was entitled to have before it during its consideration of the case both plaintiff's and defendant's theories (where, as here, there was evidence to support them) and the law applicable thereto." Gapske v. Hatch (1957), 347 Mich. 648, 658. But a party is not entitled to a charge in the exact form requested. It is enough if the court covers the subjects concerned in the requests in appropriate language. Knickerbocker v. Samson (1961), 364 Mich. 439. The charges given by the court in this case, in our view, adequately covered each item of appellant's theory and request.

The use of hypothetical illustration in charging the jury may be questionable but it is objectionable only if it tends to mislead the jury. It is rendered innocuous by a proper warning to the jury. Beecher v. Venn (1877), 35 Mich. 466. In this instance, the trial court stated that its hypothetical illustration was "completely unrelated" and "farfetched." At the conclusion of the illustration, the court applied it to the facts in issue. We find no reason to conclude the jury was misled.

Appellant complains of the following language in the court's charge:

"Now, a reasonable man coming out of the Legion at 1 a.m. doesn't have to expect or assume someone would be lying on the ground in the parking lot to the rear of the car or that someone will fall behind his car before or as he backs out."

This, she says, constitutes an invasion by the judge of the province of the jury. However, the court continued:

"The question here basically is whether a reasonable man using ordinary care would have observed Mr. Taylor's position under all the circumstances of this particular case at that time of the night and this particular place in time to have avoided running over him."

It is elementary that the judge may not instruct the jury what inferences of fact to draw. But in reviewing instructions we consider the charge as a whole, and if a possible ambiguity is clarified by other portions of the charge there is no error. See Elliott v. A.J. Smith Contracting Company, Inc. (1960), 358 Mich. 398; Hayes v. Coleman (1953), 338 Mich. 371. In viewing the charge as a whole, we find that the court properly instructed the jury regarding defendant's duty of care. The charge complained of was an attempt to see that the jury did not apply an excessively rigid standard of care and taken altogether with the succeeding sentence was correct.

We find no error in the refusal of the trial judge to allow a test of defendant's view through the rear window of his automobile. Admission of results of experiments is within the discretion of the trial court, and that discretion is not abused when the court rejects evidence of tests taken under conditions which were not similar to those obtaining with respect to the litigated happening. See People v. Auerbach (1913), 176 Mich. 23 (Ann Cas 1915B, 557); National Cash Register Company v. Blumenthal (1891), 85 Mich. 464. In this case appellant wanted to make the test in the afternoon, although the accident had occurred at 1 a.m. on a rainy, misty night. The court was not obliged to delay the trial until a change in the weather occurred, especially since appellant had ample opportunity to request a test during pretrial. The remarks of the judge in denying the test did not amount to criticism of counsel for appellant, as alleged, but were simply explanation of the reasons for denying the request. Remarks of the court are grounds for reversal when they are "of a nature calculated to disparage and prejudice him [counsel] and his clients before the jury." In re Parkside Housing Project (1939), 290 Mich. 582, 596.

Appellant complains that in charging the jury, the court gave undue prominence to defendant's theory of the case. We recognize that the trial judge must not emphasize the theory of one or the other of the parties. Snyder v. United Benefit Insurance Co. (1963), 371 Mich. 36. But the test to be applied is that the charge should fairly submit the issues to the jury, Niman v. Detroit United Railway (1921), 214 Mich. 456, which test was clearly met here.

We find no reversible error and accordingly the judgment is affirmed, with costs to appellee.

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