Garrigan v. LaSalle Coca-Cola Bottling Co. , 362 Mich. 262 ( 1961 )

Souris, J.

Decision in this case turns upon error committed in the trial court’s jury charge prejudicial to defendant’s right to trial by jury. Involved here is an attempted rebuttal of a rebuttable presumption, the statutory presumption of negligence which arises upon the happening of a rear-end collision. OLS 1956, § 257.402 (Stat Ann 1960 Rev § 9.2102). The ultimate facts are these:

Plaintiff’s truck collided with the rear of defendant’s truck on US-23 near the intersection of Coggins road. Defendant’s truck had passed plaintiff’s and, shortly thereafter, had rapidly decelerated to make a right turn near Coggins road just prior to the collision.

In the trial court’s charge to the jury is found the following instruction:

“If a motor vehicle traveling in a certain direction overtakes and strikes the rear end of another vehicle proceeding in the same direction or lawfully standing upon any highway and there is an absence of evidence as to the facts and circumstances surrounding such «collision, the driver of the motor vehicle striking the other vehicle in the rear end is deemed prima facie guilty of negligence in so doing, that is, the law presumes that he was guilty of negligence in so doing in the absence of evidence explaining the necessity therefor or rebutting such presumption of negligence.

“Now in this case we have evidence as to the facts and circumstances surrounding this collision. Therefore, you will not indulge or apply that presumption, rather, you are to determine from a consideration of all the evidence whether or not the plaintiff was-guilty of contributory negligence by reason of his vehicle striking the rear end of the defendant’s vehicle.”

When the trial court undertakes to eliminate a statutory presumption ás a matter of law from the-jury’s consideration, at the very least there must be clear, positive, and credible evidence opposing the presumption. See Gillett v. Michigan United Traction Co., 205 Mich 410; Cebulak v. Lewis, 320 Mich 710 (5 ALR2d 186); Krisher v. Duff, 331 Mich 699; and Britten v. Updyke, 357 Mich 466.

In the case at bar plaintiff’s testimony (apart from variant testimony given by other witnesses), upon which the trial court relied in directing the jury to-disregard the presumption, may fairly be summarized as follows:

Plaintiff was driving his 2-ton, flat-bed truck, loaded with used automobile batteries weighing 7 tons, in the right lane of the 2 southbound lanes of US-2J at 45 miles per hour. 750 feet before reaching Cog-gins road, defendant’s Coca-Cola truck, going in the-same direction, passed plaintiff on his left and cut in to the right lane of the highway “rather short” about 20 or 25 feet in front of plaintiff’s truck. Plaintiff reduced his speed from 45 to 40 miles per hour, and the distance between the 2 trucks gradually increased to about 80 feet. When the Coca-Cola truck reached the intersection, its brake lights went on. The plaintiff is testifying:

■ “Q. Now at that point you were still how far behind him.?

■ “A. "Well, at that point I was still about 80 feet behind him.

. “Q. What did you do?

“A. As soon as his brake lights come on, I put my brakes on, all the brakes I had. I put iny foot brake on and reached over and grabbed the hand brake.

“Q. Did you observe anything further?

“A. Well, all * * * I didn’t observe anything, only that he went on into the intersection, past the middle of the intersection. * * *

“A. I had no indication of what he was going to do other than to stop and I could see no reason for him stopping in that position in the center of the road.

“Q. Where was the defendant’s truck at that particular time? * * *

“A.- The left side of the right-hand lane.

“Q. Did you have any reaction to the defendant’s conduct of pulling up here and hitting his brakes? # # #

. “A.- Well, I had no, it just looked to me like his wheels locked like he stopped, something happened suddenly. I didn’t know what. He just stood right on its nose, like he had just decided to do something.

“Q. Now during this time what was the status in regard to your brakes ?

“A. I had all the brakes on that I had. X was pulling on the emergency brake as well, and watching for what he might do next.

“Q. All right. Did he continue to move forward even after he had hit his brakes here ?

“A. Yes. He moved forward with the brakes on, stopping suddenly. But he moved forward a short distance into the intersection.

“Q. Did there appear to be a time when he had almost stopped his vehicle?

“A. Yes, sir. * * *

“Q. 'At that time yon were coming np here with your brakes on? (Indicating)

“A. By that time I was about a truck length back of the intersection, applying my brakes fully and looking out of the corner of my eye to see what he-would do next.

“Q. And what did he do next? What did you see?

“A. Just as I entered the intersection I noticed his front wheels turn right. * * *

“Q. * * * Now when he turned right, was his-vehicle stopped or moving ?

“A. Prom where I sat, it appeared to be stopped,, but apparently it was moving real slow.”

Plaintiff swung his truck to the left in an effort to avoid collision, but the right front of his truck hit the rear of the Coca-Cola truck, causing very substantial injuries to plaintiff.

In our view, the foregoing summary of the evidence-does not so certainly oppose the presumption to justify the trial court’s withdrawal of the presumption from the jury’s consideration as a matter of law. Indeed, it may be said that plaintiff’s own testimony tends to support, rather than oppose, the statutory-presumption of his own negligence.^*

A jury would be entitled to find that the evidence-offered to rebut the statutory presumption instead discloses plaintiff’s lack of concern for his own safety and the safety of others. Reduced to the simplest meaningful terms, plaintiff’s testimony was that after defendant’s truck had passed him and had cut into the lane in which he -was driving, about 20 or 25 feet in front of him, “causing me to use my brakes briefly,” plaintiff reduced his speed from 45 to 40’ miles per hour; that he pursued defendant’s truck without further slackening the speed of his own 2-ton truck overloaded with 7 tons of ear batteries; that 700 to 750 feet from the point at which he was passed by defendant’s truck, plaintiff was only 80 feet behind it and still traveling at 40 miles per hour; and that when defendant’s truck was suddenly decelerated for a turn, plaintiff could not bring his 7-ton load to a stop even with “all the brakes on” that it had within the assured clear distance ahead (CLS 1956, § 257.627, as amended by PA 1957, No 190 [Stat Ann 1957 Cum Supp § 9.2327]).

Defendant’s driver’s negligence in cutting in on plaintiff’s right-of-way and in attempting a sudden right turn near Coggins road may be conceded for our purposes here, but does plaintiff’s testimony (that he slowed down from 45 to 40 miles per hour and then did nothing more to accelerate the increase in the distance separating the 2 trucks) tend to rebut the statutory presumption of his contributory negligence? A properly instructed jury could find that it does, but certainly a jury could find also that it does not.

In auy event, this record does not present such clear, positive, and credible presumption-rebutting evidence that would justify elimination of the presumption by the trial court as a matter of law. Defendant was entitled to have its defense considered in the jury room, distinguished from the courtroom, in the light of such statutory presumption. The jury should have 'been instructed to apply the presumption unless it found from the evidence that the presumption had been rebutted.

Reversed and remanded for new trial. Costs to defendant.:

Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.

* In Linabery v. LaVasseur, 359 Mich 122, plaintiffs relied upoa. the same statutory presumptio'n- to establish defendants’ negligence,, but a majority of this Court ruled that there was evidence which caused the presumption to disappear. Justices Black and Kavanagh. dissented.