94 N.W.2d 388 (Mich. 1959), 15, Mitcham v. City of Detroit

Docket Nº:15.
Citation:94 N.W.2d 388, 355 Mich. 182
Opinion Judge:VOELKER, Justice.
Party Name:Burleign MITCHAM, Plaintiff and Appellant, v. CITY OF DETROIT, Department of Street Railways, Defendant and Appellee. Sage MITCHAM, Plaintiff and Appellant, v. CITY OF DETROIT, Department of Street Railways, Defendant and Appellee.
Attorney:[355 Mich. 184] Douglas L. Paterson, Grosse Pointe, for plaintiff and appellant. A. Albert Bonczak, Detroit, for defendant and appellee.
Judge Panel:Before the Entire Bench.
Case Date:January 12, 1959
Court:Supreme Court of Michigan

Page 388

94 N.W.2d 388 (Mich. 1959)

355 Mich. 182

Burleign MITCHAM, Plaintiff and Appellant,


CITY OF DETROIT, Department of Street Railways, Defendant

and Appellee.

Sage MITCHAM, Plaintiff and Appellant,


CITY OF DETROIT, Department of Street Railways, Defendant

and Appellee.

No. 15.

Supreme Court of Michigan.

January 12, 1959

Page 389

[Copyrighted Material Omitted]

Page 390

[355 Mich. 184] Douglas L. Paterson, Grosse Pointe, for plaintiff and appellant.

A. Albert Bonczak, Detroit, for defendant and appellee.

Before the Entire Bench.

VOELKER, Justice.

The plaintiffs, husband and wife (by stipulation their cases were tried and appealed as one), were passengers in the defendant's municipally operated trackless motor coach. They were seated on a side seat running lengthwise and facing the aisle. At a point not at a street intersection and not at a regular bus stop the coach without warning [355 Mich. 185] swerved suddenly to the left and stopped abruptly, pitching the wife violently forward against an adjoining upright metal stanchion and severely injuring her. In due course she filed suit, her husband filing a companion suit to recover certain medical and other expenses and losses. The accident occurred on June 7, 1947.

At the trial the plaintiffs testified in addition to the foregoing that from the time they had gotten seated on the bus it began and continued 'weaving and turning;' the wife said that she kept watching traffic and watching the driver 'because his turns were so quick;' that he made a 'quick stop' to pick up passengers; that prior to the accident he was 'zig-zagging' and was passing cars, 'pulling in and out, working in and out' until he made a 'sharp cut' and 'sudden stop, no warning whatsoever.' The husband testified that prior to the accident the coach had been, to use his words, 'twisting' and 'reeling and rocking;' that at one regular stop to load passengers, prior to the accident, he had to 'grab hold of the seat' because of the suddenness of the stop; that when the accident occurred he had to grab for the metal stanchion to avoid being thrown and injured; that he also kept 'watching the driver' because he was 'afraid of an injury.' Both plaintiffs testified in substance that from where they sat they were unable to see or tell precisely why the coach swerved and came to a sudden stop, nor could they do so later because of the ensuing concern and excitement, and also that because neither of them drove cars neither could tell how fast the bus had been travelling.

The plaintiffs also produced rather detailed proofs on the severity and extent of the wife's injuries, the nature of her treatment (including a sojourn at the Mayo Clinic), and the prolonged course of her convalescence. At the close of plaintiffs' proofs the defendant[355 Mich. 186] moved for a directed verdict because of plaintiffs' failure to prove defendant's negligence or make out a prima facie case. The court reserved 1 its ruling and the defendant proceeded to put in certain proofs. At the close of all proofs the defendant on the same grounds renewed its motion for a directed verdict, which was reserved (FN1) by the court, and the jury brought in verdicts for both plaintiffs. Defendant thereupon made timely motions for judgment notwithstanding such verdicts which the court ultimately granted. The plaintiffs have appealed.

In his opinion holding that the plaintiffs had not made out a sufficient case to go to the jury the learned trial judge observed that 'To my mind this case comes in that category of ever-growing line of decisions

Page 391

that there can be no recovery for the sudden stopping or starting of street cars or busses. The circumstances of swerving and weaving standing alone does not raise a presumption of negligence.'

With this holding we must respectfully disagree. We think that under the trend of our recent decisions construing the rule of 'favorable view' coupled with Michigan's unacknowledged version of res ipsa loquitur, known within our borders more wordily as the doctrine of 'circumstantial evidence of negligence,' that these plaintiffs had at the close of their proofs made out a sufficient case to entitle them to go to a jury. More specifically we think that plaintiffs' testimony created at least a permissible inference, for one thing, that the defendant's bus driver may have been operating his bus at a speed or in a manner unsafe for the conditions present, contrary to the statute as it then stood (and, so far as this case is concerned, not since materially changed), 2 and that [355 Mich. 187] therefore a jury question as to defendant's possible negligence was presented. For recent applications or discussions of the Michigan doctrine of circumstantial evidence of negligence see Kaminski v. Grand Trunk W. R. Co., 347 Mich. 417, 97 N.W.2d 899; Higdon v. Carlebach, 348 Mich. 363, 83 N.W.2d 296; and 65 C.J.S. Negligence § 220(2), pp. 991, 992. Further cases will be cited presently.

That our law possesses no special grudge against possible recovery by passengers against public carriers in cases of this nature we think is sufficiently demonstrated by cases like Adelsperger v. City of Detroit, 248 Mich. 399, 227 N.W. 694 and Routhier v. City of Detroit, 338 Mich. 449, 61 N.W.2d 593, 40 A.L.R.2d 1114. In those cases we concede that plaintiffs' proofs were perhaps measurably stronger than those shown here; we cite them merely to show that we nourish no settled aversion to occasional recovery by passengers in public conveyances. On the other hand we think that something more than a mere sudden swerve and stop as shown by the plaintiffs in the present case, thus bringing the case within the rationale if not the precise facts of our decision in Longfellow v. City of Detroit, 302 Mich. 542, 5 N.W.2d 457. We need not and do not hold that plaintiffs' testimony necessarily showed negligence on the part of the defendant's driver; we deem it sufficient to hold that in our opinion plaintiffs showed enough from which reasonable men might have reasonably inferred and concluded that the defendant had been guilty of actionable negligence.

Referring again to the Higdon case, supra, we note that Mr. Justice Black there wryly observed (348 Mich. at page 374, 83 N.W.2d at page 302) that 'we apply res ipsa loquitur as we primly deny doing so.' He quotes Dean King to the [355 Mich. 188] same general effect. We may add that we seem frequently to apply our version of 'res ipsa' much as a disdainful lady might proclaim her profound aversion to strong drink just as she is tossing off a bumper of patent medicine harboring enough alcohol to floor a stevedore.

Ironically enough, the Michigan version of the doctrine of res ipsa loquitur in some respects plainly 'out ipsas res ipsa,' as it were; and thus we find that in some of our cases we speak boldly of a 'presumption of negligence' (see Barnowski v. Helson, 89 Mich. 523 at page 525, 50 N.W. 989, 15 L.R.A. 33, where we said 'the fact of such happening [the falling of a roof] raises a presumption of negligence in some one') 3 whereas many out-and-out 'res ipsa' jurisdictions speak more softly (as we ourselves usually do) only of an 'inference of negligence.'

Page 392

For a discussion of this point and the practical difference, if any, see 2 Harper and James, The Law of Torts (1956), § 19.11, p. 1099, et seq., particularly pp. 1101 and 1102. Thus we remark some of the dangers lurking in calling a rose by another name; in the past we were sometimes braver than we knew.

We also reject the resourceful suggestion of defendant (doubtless borrowed from the 'guest passenger' cases) that plaintiffs' prior observations, if they showed anything, proved only their contributory negligence but still failed to make out a jury case. To hold thus would be in effect to invoke a rule that apprehensive and fearful passengers on such conveyances must become 'back seat drivers;' that they owe an active duty to complain; and that they must henceforth either beg the operator to be more careful or perforce get off before their destinations. Such a proposition we cannot accept.

[355 Mich. 189] There are overtones in some of our cases that our Michigan doctrine of 'circumstantial evidence of negligence' somehow does not or should not apply to actions between passengers and public carriers, especially in cases of this nature. Wittingly or otherwise we have lent some credence to the notion that this is an exclusive area of negligence law mysteriously walled off from all others and sufficient unto itself. We will concede that our research has disclosed a prodigious number of injured passengers who have indeed been successfully walled off from recovery by our decisions, one way or another; but it should be sufficient answer to any such notion, if indeed it exists, that the very doctrine of res ipsa loquitur was itself born in actions between passenger and carrier; it was long the classic situation for invoking it. Thus 'res ipsa loquitur was most often invoked in early cases by a passenger against a carrier.' (2 Harper and James, The Law of Torts (1956), § 19.6, at pp. 1083-1084.) To the same effect see Prosser on Torts (2d ed.), § 42, p. 201.

As noted, our Court has blown both hot and cold on this subject, but mostly cold. That we have not invariably thrown upon the injured passenger the often impossible burden of pointing out by direct evidence on his main case the specific breach of duty by the carrier resulting in injury, especially where the carrier is in sole possession of the facts, we think is sufficiently demonstrated by cases like Durfey v. Milligan, 265 Mich. 97, 251 N.W. 356 and Trent v. Pontiac Transp. Co., 281 Mich. 586, 275 N.W. 501 (citing cases). See also Crase v. City of Detroit, 341 Mich. 132, 67 N.W.2d...

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