Amick v. Baller

102 Mich. App. 339 (1980) 301 N.W.2d 530

AMICK
v.
BALLER

Docket No. 49199.

Michigan Court of Appeals.

Decided December 3, 1980.

Sumpter & Loznak, P.C., for plaintiff.

Williams, Coulter, Cunningham, Davison & Read, for defendant.

Before: M.F. CAVANAGH, P.J., and T.M. BURNS and R.H. CAMPBELL,^[*] JJ.

PER CURIAM.

Plaintiff filed a complaint as a result of an automobile accident with defendant. A jury trial resulted in a verdict of no cause of action in the defendant's favor. A motion for new trial was denied by the trial court. Plaintiff appeals.

At trial, the accounts given by witnesses to the accident varied. Plaintiff and her passenger contended that they were slowly driving down a residential street in the City of Cheboygan and were negotiating a turn into their own driveway when their automobile was hit in the rear by an automobile being driven by the defendant. Defendant contended that he was following the plaintiff's automobile from a safe distance and that when he was turning into his own driveway, the plaintiff's vehicle slid directly in his path. There was also testimony to indicate that, on the following day, plaintiff described the accident by stating that she had backed up into the path of defendant's vehicle. All witnesses agreed that the roads were icy and slippery at the time of the accident.

Plaintiff appeals, raising two issues worthy of discussion.

Plaintiff first contends that the trial court erred in instructing the jury on the sudden emergency doctrine. This Court has considered on numerous occasions whether the facts present in a particular case justify an instruction on the sudden emergency doctrine. Hughes v Polk, 40 Mich. App. 634; 199 NW2d 224 (1972), lv den 388 Mich. 770 (1972), Spillers v Simons, 42 Mich. App. 101; 201 NW2d 374 (1972), lv den 388 Mich. 782 (1972), LaBumbard v Plouff, 56 Mich. App. 495; 224 NW2d 118 (1974), Manning v Cheboygan Area Schools, 76 Mich. App. 700; 257 NW2d 222 (1977), Bugar v Staiger, 66 Mich. App. 32; 238 NW2d 404 (1975), Dennis v Jakeway, 53 Mich. App. 68; 218 NW2d 389 (1974), lv den 392 Mich. 801 (1974). See also Moore v Spangler, 401 Mich. 360; 258 NW2d 34 (1977).

In Vander Laan v Miedema, 385 Mich. 226; 188 NW2d 564 (1971), the Supreme Court held that the sudden emergency doctrine is an appropriate instruction where a party is confronted with an "unusual" or an "unsuspected" situation. From the Vander Laan decision, it would appear that the factual pattern is "unusual" if the facts present in the case vary from the everyday traffic routine confronting a motorist. Thus, a blizzard or other extreme weather condition may cause such an unusual driving environment that the normal expectations of due and ordinary care are modified by the attenuating factual conditions. "Unsuspected" facts are those which may appear in the everyday movement of traffic, but which take place so suddenly that the normal expectations of due and ordinary care are again modified by the attenuating factual conditions.

In assessing the current issue, it must be remembered that the facts are viewed in the light most favorable to the defendant. Manning, supra. With this in mind, this Court concludes that an "unsuspected" factual pattern did exist. Plaintiff argues that the situation was not "unexpected" since the defendant admitted that he had a clear view of the road ahead and had been following the plaintiffs vehicle for some time. See Hughes, supra, Spillers, supra. However, there was testimony to indicate that, when the plaintiff attempted to negotiate her own driveway (on the left hand side of the street), she slid to the right toward the defendant's driveway. Plaintiff's potential peril was not in defendant's clear view for any significant length of time and consequently was totally unexpected. Additionally, the jury did hear testimony which indicated that the plaintiff had admitted on the day following the accident that she had backed out of the defendant's driveway and into the path of the defendant's vehicle. Under these circumstances, the sudden emergency doctrine was properly given by the trial court.

Plaintiff also contends that the trial court erred in instructing the jury on the assured clear distance ahead statute, MCL 257.627; MSA 9.2327, and the turn signal statute, MCL 257.648; MSA 9.2348. We disagree.

We believe the assured clear distance ahead statute operative on the date of the disputed accident was applicable to a driver of any motor vehicle who was operating his motor vehicle at a rate of speed unreasonable for the circumstances and road conditions. Consequently, this statute was relevant to the plaintiff's conduct. There was evidence submitted to the jury from which they could find that the plaintiff was operating her vehicle at an unreasonable speed and, as a consequence, slid into the path of the defendant's vehicle. As such, this penal statute could be used to establish a prima facie case of negligence against the plaintiff. Zeni v Anderson, 397 Mich. 117; 243 NW2d 270 (1976).

Similarly, the trial court did not err in instructing the jury that, if they found that the plaintiff violated the turn signal statute, plaintiff could be considered prima facie negligent. Defendant testified that, before the collision, he observed neither brake lights nor a turn signal on the plaintiff's vehicle. The turn signal statute requires that a motorist give a signal before undertaking certain maneuvers. The purpose for giving the signal is obviously to warn other motorists of an intent to change directions with the vehicle being driven. In the case at bar, there was evidence which indicated that plaintiff failed to give the proper signal. It was possible for the jury to find that this failure was a proximate cause of the accident. No error was committed.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.