Wright v. Marzolf , 34 Mich. App. 612 ( 1971 )

34 Mich. App. 612 (1971) 192 N.W.2d 56

WRIGHT
v.
MARZOLF

Docket No. 8991.

Michigan Court of Appeals.

Decided June 25, 1971.

Sinas, Dramis, Brake & Turner, P.C., for plaintiffs.

Lavey & Taber, for defendant.

Before: R.B. BURNS, P.J., and FITZGERALD and J.H. GILLIS, JJ.

PER CURIAM.

This is an action to recover damages sustained by plaintiff, a minor, when he stepped out in front of a parked vehicle and was struck by defendant's automobile. The jury returned a verdict of no cause of action. Plaintiffs appeal from the trial court's denial of their motion for a new trial.

The sole issue preserved for review is whether the trial court erred in instructing the jury as to the "sudden emergency" exception to the "assured clear distance" statute, MCLA § 257.627 (Stat Ann 1968 Rev § 9.2327). Plaintiffs argue that the testimony produced at trial did not require the court to give the "sudden emergency" instruction, and, further, the instruction given was incorrect.

A party who invokes the doctrine of sudden emergency to avoid the harshness of the assured clear distance statute is entitled to a proper instruction if there is any evidence which would allow a jury to conclude that an emergency existed within the meaning of that doctrine. Vander Laan v. Miedema (1970), 22 Mich App 170; McKinney v. Anderson (1964), 373 Mich 414. In reviewing the trial court's instruction, testimony taken at trial must be viewed in the light most favorable to defendant. McKinney v. Anderson, supra.

This testimony indicates that on the day in question defendant was proceeding west on a residential street. The day was clear and sunny; the road surface was dry. As defendant neared a parked car, plaintiff darted into the street from in front of that parked vehicle. The child plaintiff became visible to defendant when she was only 30 feet short of the accident location. Defendant tooted her automobile horn, swerved to avoid the child, and quickly applied the brakes. Her automobile had almost totally stopped at the moment of impact. There was no testimony given that defendant was exceeding the speed limit.

This evidence was sufficient to warrant the trial court's instruction as to the sudden emergency exception to the assured clear distance rule. Walker v. Rebeuhr (1931), 255 Mich 204; Gapske v. Hatch (1957), 347 Mich 648; Elliott v. A.J. Smith Contracting Company, Inc. (1960), 358 Mich 398.

Plaintiffs' allegation that the instruction given was incorrect is without merit. The trial court's instruction, read as a whole, adequately apprised the jury of the prevailing rules of law and their exceptions. Huffman v. First Baptist Church of Flushing (1959), 355 Mich 437, 445-447. Additionally, this Court will not review error which is raised for the first time on appeal, barring manifest injustice. Taylor v. American Legion Post 180 (1967), 6 Mich App 398; Kwaiser v. Peters (1967), 6 Mich App 153; Wallace v. Pere Marquette Fiberglass Boat Company, Inc. (1966), 2 Mich App 605; GCR 1963, 516.2.

Affirmed. Cost to appellee.