Young v. Groenendal
Decision Date | 03 September 1969 |
Docket Number | No. 2,No. 5,2,5 |
Citation | 169 N.W.2d 920,382 Mich. 456 |
Parties | Paul Robert YOUNG, Deceased, by James H. Young, Administrator of the Estate of Paul Robert Young, Deceased, Plaintiff and Appellant, v. Robert W. GROENENDAL and Harry H. Fetterly, d/b/a Pete's Service Center, a Michigan Co-Partnership, Defendants and Appellees. |
Court | Michigan Supreme Court |
Wallace D. McLay, Pontiac, for plaintiff and appellant.
Plunkett, Cooney, Rutt & Peacock, by David J. Watters, Jr., Detroit, for defendants-appellees.
Before the Entire Bench.
On October 12, 1962, plaintiff's decedent, a 13-year-old boy, was riding a bicycle in a westerly direction on the sidewalk on the south side of a paved highway. The highway right-of-way extended to the south edge of that walk. Between the walk and the south edge of the pavement was a grassy area on which defendants, owners of an adjacent gasoline station, had placed 3 large sandwich-type signs, over 6 feet high, which extended south, perpendicular to the highway, for about 14 feet, from a point beginning about 5 feet south of the pavement. East of the signs a driveway ran from the gasoline station north to the paved highway. When the bicyclist reached that driveway he turned north and rode, without stopping, onto the pavement of the highway. A motorist, travelling east on that highway, collided with the bicycle and its rider was killed. For that the boy's father brought this action under the wrongful death act (C.L.S.1961, § 600.2922 (Stat.Ann.1962 Rev. § 27A.2922)).
Plaintiff's original complaint charged defendant gasoline station owners with negligence which was a proximate cause of the accident in maintaining the signs on the highway right-of-way in violation of statute. Defendants filed an answer including in their defense that of the bicyclist's contributory negligence in having violated the statute requiring him to stop the bicycle on the driveway before entering the paved portion of the highway. Plaintiff then amended his complaint to change the charge against defendants from negligence to public nuisance.
At the conclusion of plaintiff's proofs, on trial, the circuit judge directed a verdict in favor of said defendants of no cause for action on the ground of the bicyclist's contributory negligence as a matter of law. Plaintiff's appeal therefrom to the Court of Appeals resulted in affirmance there on that same ground. Plaintiff is now here on leave granted to appeal.
Plaintiff's chief contention is that contributory negligence is no defense to an action for damages resulting from defendants' maintaining a public nuisance, and that defendants' placing and keeping the signs on the highway right-of-way was in violation of statute (C.L.S.1961, §§ 247.275, 247.276 (Stat.Ann.1969 Cum.Supp. §§ 9.1405, 9.1406)) and, hence, a public nuisance which was a proximate cause of the accident because the signs obstructed the vision and prevented the motorist and the bicyclist from seeing each other soon enough to avoid the accident.
A problem of labels is involved. Can denominating defendants' action or inaction a nuisance, rather than negligence, change the law as to availability of the defense of contributory negligence, or will the court peer through the label to the nature of the causes of the damage to determine the question? We think the latter is and should be the prevailing rule. An interesting pertinent discussion of the subject is to be found at 73 A.L.R.2d 1378, and particularly at page 1380, where the following appears:
'The rule that contributory negligence is not a defense to a charge of nuisance apparently developed primarily in connection with actions involving charges of the maintenance of a condition interfering with the proper use of the plaintiff's realty. In such cases, the early courts, always tender of rights in land, rejected the argument that a man's use of his property should be conditioned or limited by the necessity of avoiding harm from his neighbor's wrongful acts, and it is apparently still the rule in most jurisdictions that contributory negligence is not a defense in an action for damages arising from such a nuisance.
'With the extension of the nuisance label to a wide variety of other types of harm, astute plaintiffs soon advanced the argument that if the cause of action could be brought under the nuisance umbrella, the rule that contributory negligence is not a defense must also be applied, even though the action might be for personal injury or chattel damage having only the most remote, if any, connection with the use of realty, and might involve circumstances more usually presented in an ordinary negligence action.
'To meet this argument and to avoid permitting or denying recovery to the negligent plaintiff only on the basis of the label attached to the cause of action, many courts began to draw a distinction between what may be called 'negligent' nuisance, where recovery would be authorized only if it could be shown that defendant had acted negligently, and 'absolute' nuisances, holding that contributory negligence was a defense in the former but not in the latter cases.
'However, attempts to clearly define this distinction have not been too successful and in several cases the courts have apparently taken the view that it should be abandoned, holding that in all nuisance cases, at least where interference with the use of realty is not involved, the plaintiff is under a duty of exercising reasonable care, although of course the question as to what constitutes reasonable care under the circumstances will vary according to the nature of the defendant's wrongful act and the type of condition created thereby.'
This is not an action for damage to plaintiff's land caused by the condition or use of defendants' land or of the right-of-way which the cases have termed 'absolute' nuisance. It seems to us that this falls, rather, into the class described in Denny v. Garavaglia (1952), 333 Mich. 317, 52 N.W.2d 521, as a nuisance that has its origin in negligence. In that case this Court said, inter alia:
'It is the general rule that contributory negligence is a defense to a nuisance that has its origin in negligence. See McFarlane v. City of Niagara Falls (1928), 247 N.Y. 340, 160 N.E. 391, 392, 57 A.L.R. 1. In the above case, it was said (pp. 344, 348, 160 N.E. 391):
* * *"
In the instant case defendants were not willfully inflicting a wrong. While unlawful placing of the signs constituted negligence because in violation of statute, it was not necessarily calculated to cause injury or damages to others nor does the record indicate that this was reasonably foreseeable. Pictures in evidence would appear to the contrary.
C.L.S.1961, § 257.657 (Stat.Ann.1968 Rev. § 9.2357), places the same duties and requirements on persons riding bicycles as on motor vehicle operators and C.L.S.1961, § 257.652 (Stat.Ann.1968 Rev. § 9.2352), requires that drivers about to enter or cross a highway from a private driveway shall come to a full stop before entering the highway and yield to traffic approaching on the highway. As established by the uncontradicted testimony, the bicyclist did not comply with this statutory requirement. He was, accordingly, guilty of contributory negligence as a matter of law. Rasmussen v. McEachron (1936), 274 Mich. 200, 264 N.W. 342. See also, Zabawa v. Eshenroeder (1946), 313 Mich. 555, 21 N.W.2d 852, in which plaintiff bicyclist was denied recovery for damages resulting from being struck by a motor vehicle because of his own contributory negligence.
The trial court was correct in directing verdicts in favor of defendants, the gasoline station owners.
Affirmed. Costs to defendants.
My vote is cast for reversal and entry of order for new trial.
I have written before that the practice of directing a verdict for the defendant on exclusive strength of the credible or incredible testimony of an interested witness, the assigned reason being contributory negligence, should be arrested summarily. See Wolfgram v. Valko (1965), 375 Mich. 421, 432, 134 N.W.2d 649. There a directed verdict for the defendant was upheld by equal division of the Court. The same question is here again.
In Wolfgram (p. 438, 134 N.W.2d 649) I called attention to the pertinent rule of Sonnentheil v. Christian Moerlein Brewing Co. (1899), 172 U.S. 401, 19 S.Ct. 233, 43 L.Ed. 492 and to the Supreme Court's continued pursuit of that rule in instances where summary toss-out of damage actions has been sought. The rule (Sonnentheil at 408, 409, 19 S.Ct. at 235, 236):
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