Armstrong v. Le Blanc

• Decision Date: 18 December 1975
• Docket Number: No. 12,12
• Citation: 395 Mich. 526,236 N.W.2d 419
• Parties: Joseph ARMSTRONG and Beverly Armstrong, Plaintiffs-Appellees, v. John E. LeBLANC and Ralph Franklin Emerson, jointly and severally,Defendants-Appellants. 395 Mich. 526, 236 N.W.2d 419
• Court: Michigan Supreme Court

Page 419

236 N.W.2d 419

Joseph ARMSTRONG and Beverly Armstrong Plaintiffs-Appellees, v. John E. LeBLANC and Ralph Franklin Emerson, jointly and severally,Defendants-Appellants.

No. 12.

395 Mich. 526, 236 N.W.2d 419

Supreme Court of Michigan.

Dec. 18, 1975.

van Benschoten & van Benschoten, P.C., by Harvey E. van Benschoten, Saginaw, for plaintiffs-appellees.

Collison & Fordney, P.C., by Charles C. Collison, Saginaw, for defendants-appellants.

FITZGERALD, Justice.

Defendants appeal from the Court of Appeals affirmance of a directed verdict granted to plaintiffs which determined defendants liable on the issues of negligence and contributory negligence. Our review of the facts convinces us that the question of liability should have been determined by the jury and we must reverse and remand for a new trial.

At approximately 9:30 on the morning of December 30, 1968, plaintiff Joseph M. Armstrong, a state police officer assigned to patrol portions of Saginaw County, observed a vehicle traveling northbound at a very high rate of speed on Dixie highway, a four-lane, undivided highway. Officer Armstrong pursued the speeding vehicle for approximately 8 miles, clocking its speed in excess of 80 miles per hour. Unable to gain the driver's attention by flashing a red spotlight into his rear window, Armstrong changed into the passing lane along side of the driver and aimed a flashing red light directly at the driver, motioning him over to the side of the road. The driver reduced his speed immediately, steered to the right, and came to a stop on the right shoulder of the highway. Aware that the passing lane was slippery and wanting to avoid sliding into the speedy vehicle, Armstrong drove ahead and stopped at the side of the road approximately eight to ten feet in front of the speeding vehicle. Armstrong testified that his police vehicle came to rest with the left wheel just on the right edge of the highway while the vehicle behind was positioned with the left wheel just off the edge of the highway.

Plaintiff Armstrong further testified that he turned on the flashing lights located on the left rear fender of the police vehicle and walked back to speak with the driver. As he approached the car, he noticed defendant's truck traveling toward him about 3/10 of a mile away. He was unable to estimate the speed of the truck and did not notice the lane in which it was traveling. He stood on the edge of the pavement beside the driver's window and asked to see his operator's license, registration, and proof of insurance. Plaintiff believes he may have straightened up intending to return to his vehicle when he was struck by a mirror which extended from the cab of defendant's truck. He suffered a broken collar bone and forearm, a collapsed lung, and sustained multiple fractures of the right ribs. At no time did he look toward defendant's oncoming truck, nor did he attempt to remove himself from the path of the approaching vehicle.

Defendant Emerson testified that he was operating his truck in a northerly direction on Dixie highway at 30 to 35 miles an hour. At a distance he estimated to be two or three city blocks, defendant observed two parked vehicles. After traveling further, he noticed the cars parked on the shoulder of the road and a patrolman standing on the shoulder leaning with his elbows and arms resting on the driver's window of the nearest vehicle. Defendant continued in the right, or curb, lane until a point approximately 200 feet from the plaintiff. Seeking to avoid striking the officer, he then turned toward the center of the road until the left wheel of the truck was on the broken line which divided the northbound lane of Dixie highway. The dividing line was covered by snowdrifts in some spots and the road was slippery. Defendant testified that the last time he saw the plaintiff he was leaning over talking to the driver. After hearing a thump, he applied the brakes, stopped his truck, and ran back to assist the plaintiff. Defendant estimated that the width of each lane of Dixie highway measured approximately nine feet, estimated the width of his truck to be eight feet, and thought the rear-view mirrors extended out from the side of the truck six to eight inches. Defendant did not see any flashing lights on plaintiff's vehicle.

A jury trial was conducted in which plaintiff sought money damages for injuries suffered and his wife, Beverly, sought damages for loss of consortium. Plaintiffs' motions for directed verdicts on the issues of negligence and contributory negligence were granted. The trial court ruled defendant negligent as a matter of law, determining his conduct to be the proximate cause of plaintiff's injuries. Any antecedent negligence of plaintiff constituted only a remote cause of the injuries, being superseded by defendant's subsequent intervening negligence. Defendants' motion for directed verdict as to Beverly Armstrong was denied. The jury awarded plaintiff $50,000 and his wife $1,000. The Court of Appeals affirmed the judgment of the lower court as to plaintiff Joseph Armstrong and reversed his wife's award for loss of consortium. Defendants now appeal to this Court, challenging the directed verdict in plaintiffs' favor.

The issue before us is whether the trial court committed reversible error in directing verdicts against defendant on the issues of defendant's negligence and plaintiff's contributory negligence. Defendants first argue that the determination of negligence should have been made by the jury since the evidence submitted could enable reasonable men to differ on the question of whether defendant acted negligently. Plaintiff disagrees, contending that defendant was negligent as a matter of law in violation of common-law principles of ordinary care as well as the assured clear distance statute. ¹

The proper test for determining whether plaintiff should be granted a motion for directed verdict is whether reasonable men could reach different conclusions from facts taken in the light most favorable to defendant. If so, the question should be resolved by the jury. Sparks v. Luplow, 372 Mich. 198, 125 N.W.2d 304 (1963); Kroll v. Katz, 374 Mich. 364, 132 N.W.2d 27 (1965). Defendant states that reasonable minds could differ as to whether he had acted negligently when the following factors are considered: defendant was traveling at 30 to 35 miles an hour within a 65-mile-an-hour speed zone; the road conditions were hazardous; defendant attempted to avoid colliding with plaintiff by moving his vehicle to the left when approximately 200 feet from the point of collision; defendant last observed plaintiff standing on the shoulder of the road leaning over talking into the window of the vehicle nearest the defendant. Plaintiff's testimony, however, indicated that he was standing on the edge of the highway. Were the jury to believe plaintiff's testimony as to his own position on the highway, we cannot say that no reasonable person would hold defendant free from negligence. Whether defendant exercised due care under the circumstances is a determination that should have been made by the jury.

Defendant's negligence is not based upon a violation of the assured clear distance statute. He attempted to avoid the plaintiff by steering his vehicle toward the left. Whether he was traveling at a proper rate of speed under the existing conditions which would permit him to stop prior to striking the plaintiff is not at issue. The statute is inapplicable.

We come now to the question of plaintiff's contributory negligence and the doctrine of subsequent negligence. ² The Court of Appeals concedes that a question of fact existed as to whether plaintiff was performing his duty in a manner dangerous to his own safety, but concluded that a finding of contributory negligence would still render defendant liable because of his subsequent negligence. Reviewing the appropriateness of the trial court's entry of a directed verdict for plaintiffs on the basis of subsequent negligence, we are persuaded that a sufficient question of fact was presented on this issue to warrant determination by the jury.

This case aptly demonstrates why the troublesome concept of subsequent negligence has through the years engendered 'little agreement and endless discussion'. ³ LaCroix v. Grand T W R Co., 379 Mich. 417, 152 N.W.2d 656 (1967), quoted extensively by defendant, examines the theory and application of subsequent negligence. The doctrine considers any Antecedent negligence by a plaintiff, which places him in a dangerous position, a Remote cause of any injury he may suffer where the Proximate cause of the injury is attributable to the subsequent intervening negligence of the defendant. This is said to occur when a defendant 'who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury'. ⁴ However, where plaintiff's negligence is Concurrent with that of the defendant, the doctrine may not be invoked and plaintiff's contributory negligence will prevent recovery. Defendant argues that plaintiff's negligence was concurrent with his own and should operate to defeat plaintiff's claimed recovery. Plaintiff responds, also advancing LaCroix as supportive authority, but concludes that plaintiff's negligence was, in fact, antecedent to defendant's subsequent intervening negligence which constituted the sole proximate cause of the accident.

We are asked to assess liability by classifying negligent conduct within a framework of time and space which examines foreseeability, judgment, and causality. Considered are the metaphysical vagaries which accompany categories of negligence termed Antecedent, concurrent, and Subsequent intervening. Plaintiff's conduct arguably ranges from a significant contributing factor in sustaining the injury to one which is described as being harmlessly remote. The difficulty in...