Bordner v. McKernan

Plaintiff, a traveling man and a resident of Ohio, was a passenger for hire in a taxicab owned by defendant McKernan and driven by defendant Bentley. On the way to plaintiff's destination, a hotel in Dearborn, sometime after midnight on December 17, 1936, defendant Bentley, in making a left-hand turn at an intersection, collided with another automobile. Bentley stopped the taxicab in the middle of Warren avenue, facing west, on the streetcar tracks, and went back to inspect the damage to the other car. Plaintiff remained in the taxicab during a period of approximately one and one-half minutes, when an automobile driven by defendant Quinn, proceeding easterly on Warren avenue, crashed into the taxicab, resulting in injuries to plaintiff, for which he brought suit. On trial a jury awarded plaintiff a verdict in the amount of $2,500 against defendants Quinn, Bentley, and McKernan. McKernan and Bentley appealed, claiming that there was no proof of negligence on their part and that, if it be found that such negligence existed, plaintiff was guilty of contributory negligence.

It is contended that the sole cause of the collision was the negligence of defendant Quinn in running into the taxicab. It appears that there were street lights near the scene of the accident, and it was claimed that Quinn could have seen the taxicab ahead. Quinn testified that he did not see the taxicab until he was within approximately 40 feet, for the reason that he had not been looking, and that he was unable to avoid the collision thereafter because of a number of people standing in the street between the taxicab and the curb. It is further asserted that plaintiff himself was guilty of contributory negligence because of his failure to get out of the taxicab while it was standing in the street.

On the issue of contributory negligence, we are in accord with the determination of the trial court that this was a jury question. Plaintiff was a stranger in the city. The place where defendant Bentley stopped was in a sparsely settled part of the community. It was after midnight. Whether plaintiff acted as a reasonably prudent person in remaining in the cab under the circumstances was a question of fact. In considering the contention of plaintiff's contributory negligence we necessarily, in this case, are bound to consider the duty of defendants Bentley and McKernan to plaintiff. The relation of passenger and carrier continued until the journey was concluded. 10 C. J. p. 623. As a common carrier, defendant owed plaintiff a duty to exercise a high degree of care, which means care proportionate to the nature and risk of the undertaking in view of the means of conveyance employed. DeJager v. Andringa, 241 Mich. 474. Did defendants exercise such a high degree of care in leaving an unlighted taxicab standing in the middle of the street with a passenger inside? This was a question of fact.

With regard to the contention that the negligence of Quinn was the sole cause of the accident, it is to be remembered that there may be more than one proximate cause of the same injury. Assuming that Quinn was negligent in running into the taxicab and that the injuries would not have resulted without such negligence, it is clear that Bentley's negligence may also have been a proximate cause, and that the two negligent acts may have been cooperating and concurrent. See Reed v. Ogden Moffett, 252 Mich. 362.

Upon a review of the record it is our conclusion that the verdict was not, as claimed, against the great weight of the evidence; and the judgment is, accordingly, affirmed, with costs to plaintiff.

BUSHNELL, C.J., and SHARPE, CHANDLER, NORTH, WIEST, and BUTZEL, JJ., concurred. The late Justice POTTER took no part in this decision.