Nowicki v. Suddeth , 7 Mich. App. 503 ( 1967 )

7 Mich. App. 503 (1967) 152 N.W.2d 33

NOWICKI
v.
SUDDETH.

Docket No. 1,768.

Michigan Court of Appeals.

Decided August 1, 1967. Rehearing denied September 8, 1967. Leave to appeal granted December 12, 1967.

Zeff & Zeff, for plaintiff.

Rouse, Selby, Webber, Dickinson & Shaw (James H. Finney, of counsel), for defendant.

Leave to appeal granted December 12, 1967. See 379 Mich. 791.

LESINSKI, C.J.

The defendant appeals from a judgment entered for the plaintiff in an automobile collision case, and the subsequent denial of her motion for a new trial.

On January 29, 1960, the plaintiff was driving east on Davison avenue, a four-lane, east-west street in the city of Detroit. The defendant was driving south on Sherwood, which intersects Davison. When the defendant reached Davison, the traffic thereon was backed up from a railroad crossing located west of Sherwood. The defendant stopped at the stop sign and after a wait of several minutes started across Davison. She testified that she looked for eastbound traffic upon entering the third of the four lanes, and that she saw the railroad gate going up. She further testified that as she traveled from the third to the fourth lane, across Davison, that she no longer looked to her right (toward eastbound traffic). According to her testimony, when she was two car lengths into the intersection, an unidentified man waved the defendant across Davison. Questioning by the plaintiff's counsel produced a clear statement by the defendant that she had relied upon this man's judgment rather than her own in determining whether she could cross all four lanes of Davison traffic with safety. Unfortunately, his judgment was not without flaw, and the plaintiff, who was employing the fourth (curb) lane of Davison to drive eastward, hit the defendant's car. The point of impact was near the southwest corner of the intersection.

Plaintiff brought a negligence action seeking to establish defendant's liability for his ensuing injuries. Defendant's answer included, as an affirmative defense, allegations of plaintiff's negligence. Both parties filed demands for jury trial. Plaintiff's amended declaration denied any negligence or contributory negligence on his part. A jury trial followed.

Prior to the instruction of the jury, the plaintiff moved for a directed verdict. After argument thereon, out of the presence of the jury, the court found that the defendant was negligent as a matter of law. He so instructed the jury. The trial judge continued to give instructions on the definition of negligence; however, he left the question of plaintiff's contributory negligence for jury determination. The jury returned a verdict for plaintiff in the amount of $14,000 and judgment was entered thereon. Defendant's subsequent motion for a new trial was denied. Her appeal followed.

We note at this juncture that defendant's motion to file a partial transcript, pursuant to GCR 1963, 812.2(b), was granted. Before us for review, therefore, we have the record on appeal, a partial transcript of the trial testimony which consists of the defendant's testimony,^[1] the arguments of counsel and the court's decision regarding plaintiff's motion for directed verdict, and the jury charge. This appeal is limited to two issues. Although opposing appellate counsel phrased them somewhat differently, essentially the questions before us are: whether the trial court erred in directing a verdict for the plaintiff as to defendant's negligence, and whether the trial court erred in refusing to instruct the jury on a section of the Detroit City Code, § 38-3-7(b).^[2] The defendant had requested said instruction in writing and orally. This question will be treated more extensively infra.

We give initial consideration to the question of the propriety of the directed verdict under the facts of the instant case. It is settled law that, on a motion for a directed verdict, the testimony is construed most favorably for the opposing party.

Plaintiff claimed that the defendant, on her own testimony as described above, was negligent as a matter of law. Defendant, in her attempt to refute this assertion, cites the factual situation of Hakliv v. Woznak (1963), 371 Mich. 251, as analogous to the one before us and argues that the law of Hakliv is applicable and requires a reversal of the decision below. In Hakliv, supra, the trial court refused to direct a verdict for the plaintiff and the Supreme Court affirmed a subsequent jury verdict and judgment entered thereon for the defendant. The pertinent question and defendant's answer thereto were as follows:

"Q. Tell us, will you, in your own words just what happened as you approached the intersection of Ennis?

"A. As I was approaching the intersection I don't suppose I more than glanced toward the direction of the street Ennis but all of a sudden the boys were in front of me."

The Court held at 254 that this "is no proof of judicial confession of negligence." It further stated at 255 that "it is not possible to conclude from this answer that the defendant was confessing to a failure to make a proper observation before entering the intersection."

The facts in the Hakliv Case are markedly distinguishable from those presented by the instant case. In Hakliv, the defendant, who was driving an automobile, collided at an intersection with the plaintiff who was a passenger on the back of a bicycle operated by another boy. Defendant's view was obstructed by a four-foot embankment topped with weeds. Plaintiff was almost at the intersection when defendant saw him and applied the brakes, but failed in her attempt to avoid the ensuing collision. Her answer, repeated above, was, in the Court's words, "a colloquial answer."

In the case at bar, although there were two lanes of traffic stopped at the railroad crossing, the defendant testified that as she entered lane 3 there were no cars between herself and the gate. Her view and her progress across the third lane were neither impeded nor obstructed. Her testimony that she did not continue to look to the right was clear and unequivocal. And, her statement of reliance on the man who waved her on — described by the trial court as "the phantom waver" — was forceful and definite.

"Q. Now, whose judgment did you rely upon as you started to cross the street, the man waving you across or your own?

"A. The gentleman. When he waved, motioned me to go across I started to cross Davison.

"Q. Isn't it a fact that when you entered the two eastbound moving lanes that you at no time formed in your own mind an opinion that those lanes could be crossed with safety; you relied upon this gentleman, did you not, Ma'm? Isn't that true?

"A. Yes, I did."

The lack of factual similarity precludes our determining that Hakliv controls the decision here.

The defendant also cites McKinney v. Yelavich (1958), 352 Mich. 687. McKinney was a pedestrian-auto collision case. The holding therein was that the plaintiff could not be held guilty of contributory negligence as a matter of law. The McKinney decision is of no aid to the defendant. Not only is it factually distinguishable, but it also was followed, in effect, by the court below which determined that the question of the plaintiff's conduct was for the trier of fact.

Defendant's next authority is Baker v. Alt (1965), 374 Mich. 492. It presented another bicycle-auto situation. At the outset of the opinion, the Court stated at 495:

"What defendant [driver] would have been able to see down the street upon which the cyclist approached was clearly in factual dispute."

Initially, this differs from the instant case. What defendant was able to see was not in factual dispute here. Although Baker further states that the question of the driver's negligence is no less one for the jury than is the question of the plaintiff's contributory negligence, this remark is circumscribed by the inclusion of the phrase "under these circumstances."^[3]Baker, therefore, does not require reversal here.

We do not dispute the law stated in the other cases relied on by defendant. Rather, we find that the fact situation presented by the instant case is one of those exceptions to the general rule that the question of negligence is one for the trier of fact. Reasonable minds could not differ where the defendant admits, in effect, that her view was not obstructed, that she did not utilize her own powers of sight to determine whether it was safe to proceed, but relied instead upon the judgment of an unknown waver. There was no error in the trial court's refusal to permit jury consideration as to defendant's negligence.^[4]

This brings us to the second assignment of error, namely, whether the court below committed reversible error in refusing to instruct the jury as requested by the defendant on the section of the code of the city of Detroit, as set forth in the margin (footnote 2), supra.^[5] The requested instruction was properly filed. When it became apparent to defense counsel, during the course of the charge, that the trial judge was not going to give this instruction, defense counsel interrupted him and repeated the request orally. The court said:

"Let me handle my charge without any interruption. If I am wrong, then I am wrong. I don't like to get into a lot of extraneous things that are going to cause confusion to the jury."

At the close of his instructions, and prior to the retiring of the jury to consider the verdict, the court asked counsel to approach the bench. An unrecorded conversation between court and counsel ensued, after which the case was submitted to the jury which subsequently held for plaintiff.

We note initially that the defendant's interruption of the charge, which we do not condone as exemplary courtroom procedure, did amount, in effect, to sufficient and substantial compliance with GCR 1963, 516.2, to preserve the question for appellate review. Further, we agree that failure to give a requested instruction which is supported by evidence and is a correct statement of applicable law is error. However, the court does not have a duty to give an instruction which is erroneous as to facts or as to law. We direct attention to defendant's primary authority for his first allegation of error, i.e., Hakliv v. Woznak, supra.

Additionally, the court is not required to give a specific request to charge which is ambiguous. As the Michigan Supreme Court said some 88 years ago in Kehrig v. Peters (1879), 41 Mich. 475, 480:

"Courts cannot be held to err in omitting to give specific requests on subjects covered by the charge actually given, because some astute construction may make the request proper. Requests to charge if granted, are given for the instruction of juries, who cannot be supposed to be versed in legal niceties. A charge not adapted to give them clear ideas, and which is in any way ambiguous, may be properly laid aside."

It is apparent from the court's response to defense counsel's oral request for this instruction that the rationale for the court's ruling was a determination that this request would have such a tendency. If this reasoning has validity there is no ground for reversal.

The first part of the ordinance refers to the defendant's conduct. Once the court had determined her negligence as a matter of law, this portion became inapplicable and an instruction which included it might well tend to mislead the jury. The second part of the ordinance deals with plaintiff's conduct. The court gave a thorough instruction on contributory negligence to the jury. In our appellate review of a charge, we necessarily consider the instructions in their entirety. Our employment of this guide precludes reversal. The defendant's theory was amply presented to the jury. A reading of the ordinance might have injected ambiguity and would have defeated the raison d'etre of instructions to a jury.

Affirmed.

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

NOTES

[1] Defendant was called as a witness by plaintiff under the opposite party statute, CLS 1961, § 600.2161 (Stat Ann 1962 Rev § 27A.2161). Cross-examination and recross-examination followed.

[2] "Through highways and stop intersections. The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway or a stop intersection and shall yield the right-of-way to other vehicles which have entered the intersection from such through highway or which are approaching so closely on such through highway as to constitute an immediate hazard, but such driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on such through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway."

[3] We note parenthetically that Baker v. Alt (1965), 374 Mich. 492, claims its eminence in the jurisprudence of our State primarily for its determination that an infant under 7 years of age is incapable of contributory negligence.

[4] As recently as Green v. Wallace (1965), 376 Mich. 113, the Michigan Supreme Court has found occasion to affirm a summary judgment for defendant driver whose automobile struck plaintiff pedestrian, where plaintiff's deposition showed him guilty of contributory negligence as a matter of law. Plaintiff's deposition showed that he crossed a street at other than the crosswalk and failed to make proper observation of traffic. There were no unusual circumstances to excuse plaintiff's failure to see defendant's car until too late.

[5] We note herein that this section of the code of the city of Detroit was not introduced into evidence.