Nuccio v. Severini , 374 Mich. 189 ( 1965 )

374 Mich. 189 (1965) 132 N.W.2d 172

NUCCIO
v.
SEVERINI.

Calendar No. 35, Docket No. 50,234.

Supreme Court of Michigan.

Decided January 4, 1965.

Dann, Rosenbaum, Bloom & Kaufman, for plaintiff.

Marentay, Rouse, Selby & Webber (Forrest G. Shaw, of counsel), for defendant.

PER CURIAM:

Plaintiff was struck and injured by defendant's eastbound car while she was walking north from the southeast corner of the intersection of Michigan avenue and Griswold street in Detroit. Her suit for damages, tried to a jury, resulted in a verdict of no cause. She appeals, as of right, alleging erroneous jury instructions.

At the time and place of plaintiff's injury, a police officer was directing late afternoon rush-hour traffic. The intersection was also controlled by a mechanical signal device. Plaintiff testified that she commenced to cross Michigan avenue when the traffic light turned green for northbound vehicles and pedestrian traffic and the officer had blown his whistle and "made a motion to cross the street". Collision with defendant's car occurred somewhere before plaintiff reached the center of the street. Defendant testified that, while eastbound on Michigan avenue, his path was blocked by a car turning north onto Griswold and, when that car completed its turn, the traffic signal light had turned to red for Michigan avenue traffic but that the police officer signaled him to proceed through the intersection. The police officer confirmed the defendant's testimony and testified further that after signaling defendant to proceed through the intersection, he (the officer) turned toward the south and just as he signaled northbound traffic to proceed, plaintiff was struck by defendant's vehicle. He also testified that he had not previously given plaintiff any signal to proceed across Michigan avenue.

The case was submitted to the jury on the disputed fact issue whether plaintiff had received a signal to cross from the police officer. Without objection from plaintiff's counsel, either at the end of the trial judge's original rendition of the charge or after the charge had been reread to the jury at its request after one full afternoon and the following morning of jury deliberations, the trial judge charged that when a police officer is directing traffic at an intersection despite the presence of a mechanical signal device, a pedestrian may proceed only when permitted to do so by the officer. Plaintiff now claims this charge was erroneous, that she was entitled to cross on the green light even without a signal from the officer to do so, and that the judge's charge required the jury to find plaintiff guilty of contributory negligence in the event it found the officer had not signaled plaintiff to cross.

Even if plaintiff were correct in her assertion that she was entitled to cross before the officer signaled her to do so, a bare assertion which fails to persuade us, she neglects to draw to our attention anything in the record to indicate that she made a request of the trial judge so to charge the jury. Indeed, defendant advises us that plaintiff submitted no requests to charge nor, as previously noted, did plaintiff at any time object to the charge as given.

Under such circumstances, plaintiff's complaint, even if valid, would be too late in the history of this litigation. Gilson v. Bronkhorst, 353 Mich. 148, Lober v. Sklar, 357 Mich. 166, and Sarazin v. Johnson Creamery, Inc., 372 Mich. 358. See, also, GCR 1963, 516.2 and its predecessor, Court Rule No 37, § 9 (1945).

Affirmed. Costs may be taxed in defendant's favor.

KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, O'HARA, and ADAMS, JJ., concurred.