Young v. Groenendal

Decision Date03 September 1969
Docket NumberNo. 2,No. 5,2,5
Citation169 N.W.2d 920,382 Mich. 456
PartiesPaul 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.
CourtMichigan 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.

DETHMERS, Justice.

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):

"Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another. There has been forgetfulness at times that forms of action have been abolished and that liability is dependent upon the facts and not upon the name. Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance. * * *"

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.

BRENNAN, C.J., and KELLY, J., concur.

BLACK, Justice.

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):

'Notwithstanding the testimony of these witnesses was so positive to the effect that they accepted the trust, we are of opinion that it was not improper to submit the question to the jury. In its charge the court instructed the jury that the creditors who accepted the deed of trust must themselves be free from the taint of fraud, and the question of fraud was so connected with that of acceptance that it was possible for the jury to have found that the accepting creditors had knowledge of the fraud at the time of their acceptance. They were all apparently interested in sustaining the deed, and in denying all knowledge of a fraudulent intent; and while the jury has no right...

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