Kubasinski v. Johnson

46 Mich. App. 287 (1973) 208 N.W.2d 74

KUBASINSKI
v.
JOHNSON

Docket No. 12364.

Michigan Court of Appeals.

Decided April 23, 1973.

Sheldon Wachler, P.C., for plaintiffs.

Nunneley, Nunneley, Hirt & Rinehart, for defendant.

Before: V.J. BRENNAN, P.J., and LEVIN and O'HARA,^[*] JJ.

O'HARA, J.

This is an appeal of right from a directed verdict against plaintiff in an automobile accident case. Plaintiff is a cyclist.^[1] Defendant is the operator of the involved motor vehicle.

In this state in all but rare instances the questions of negligence and proximate causality are for the jury where, as here, one has been demanded. Comstock v General Motors Corp, 358 Mich. 163 (1959); Martiniano v Booth, 359 Mich. 680 (1960). Justice SMITH in McKinney v Yelavich 352 Mich. 687, 692 (1958), expressed it thus:

"Only under the most extreme circumstances, those, in fact, where reasonable minds could not differ upon the facts, or the inferences to be drawn therefrom, can the case be taken from the jury." This seems to us to qualify as one of those rare instances which is an exception to the general rule.

Defendant had been driving east. He turned south on a two-lane road. There was a slower vehicle ahead of him. He turned out into the northbound lane to pass it. Ten or twelve feet ahead of him he saw the cyclist proceeding in the same direction. It was a dark rainy morning. It is conceded that defendant's lights were on. The cyclist was statutorily obligated to ride "as near to the right side of the roadway as practicable", MCLA 257.660; MSA 9.2360. A disinterested witness placed plaintiff in the middle of the wrong lane, left of the center line.

Plaintiff complained of partial amnesia. His testimony was thus vague. According to it, at the last point he remembered anything he was "not crossing the road". There seems to be no explicable reason for his being where he was except his own choice to be there.

Violation of a statute is negligence per se. Morton v Wibright, 31 Mich. App. 8 (1971); McKinney v Anderson, 373 Mich. 414 (1960); Selmo v Baratono, 28 Mich. App. 217 (1970). Even so ordinarily the proximate causality of that negligence is an issue of fact. Comstock, supra; Johnson v Hughes, 362 Mich. 74 (1960). It can, however, become a question of law for the court. Coles v Galloway, 7 Mich. App. 93 (1967); Meier v Holt, 347 Mich. 430 (1956); Otto v Hansen Wholesale Lumber Corp, 331 Mich. 37 (1951). The general rule is that where the injured person's negligence is incontrovertibly proximately connected with the occurrence causing his injury, the issue is for the court. Modzel v Norwalk Truck Lines, 325 Mich. 693 (1949); Dulemba v Tribble, 325 Mich. 143 (1949); 65 CJS, Negligence, § 265, p 938. We hold it was properly for the court in this case.

There was no evidence of negligence on defendant's part unless it was negligent of him to have been unable to stop within ten or twelve feet when he suddenly came upon a cyclist at a place the cyclist had no legal right to be. It is almost axiomatic that a party need not anticipate a negligent or unlawful act on the part of another. Koehler v Detroit Edison Co, 383 Mich. 224 (1970); Wright v Delray Connecting R Co, 361 Mich. 619 (1960); Staunton v Detroit, 329 Mich. 516 (1951).

Despite our empathy for the seriously injured plaintiff, we perceive no possible issue of fact. The trial judge properly directed a verdict against him.

We affirm. Costs to the defendant.

V.J. BRENNAN, P.J., concurred, LEVIN, J., not participating.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] His wife joined as a plaintiff in her action for loss of consortium.