Barringer v. Arnold

Decision Date25 February 1960
Docket NumberNo. 30,30
Citation358 Mich. 594,101 N.W.2d 365
PartiesBetty BARRINGER, Plaintiff and Appellant, v. John ARNOLD and Robert L. Vossen, Defendants and Appellees.
CourtMichigan Supreme Court

Schlee, McIntosh, Simpson & Oppliger, Port Huron, for plaintiff and appellant.

Said M. Touma and Loyall G. Watson, Port Huron, for defendants and appellees.

Before the Entire Bench.

CARR, Justice.

Plaintiff brought this action in circuit court to recover damages for personal injury sustained in a traffic accident. On February 15, 1957, at about 5 o'clock in the afternoon, she was riding in an automobile driven by her husband in a southerly direction on a public street in the city of St. Clair. A motor vehicle owned by defendnat Arnold and driven by defendant Vossen was at the time proceeding in a northerly direction on said street. For reasons that are in dispute the cars came in contact on the west side of the traveled portion of the highway, a blacktop road approximately 24 feet in width at the point in question. As a result of the collision plaintiff was injured.

In the declaration filed in the case plaintiff alleged that Vossen, hereinafter referred to as the defendant, was negligent in the operation of the automobile owned by Mr. Arnold and driven at the time with his knowledge and consent. Specifically it was charged that defendant was driving at an excessive rate of speed, that he did not have his vehicle under proper control, that he was proceeding in a careless and heedless manner, and that he negligently crossed the center line of the highway. It was the claim of the defendant on the trial of the case in circuit court that he was not driving at an excessive rate of speed or otherwise in a negligent manner, that an automobile suddenly came from a private driveway and entered the highway in front of him, that he attempted to avoid striking said car by turning to his left, that the then observed the proximity of the Barringer car, and that in endeavoring to avoid a collision with either of the vehicles he applied his brakes in an attempt to 'spin' his car on the pavement. His testimony in this respect is corroborated to some extent by that of a police officer of the city of St. Clair who arrived on the scene shortly after the accident had occurred, and who testified as to the skid marks that he observed on the pavement. It further appears that the Barringer car was damaged on its left side and the condition of the defendant's vehicle after the impact indicated that the front right corner thereof had come in contact with the automobile in which plaintiff was riding.

A witness on behalf of defendant corroborated the latter's claims as to the attempted spinning operation and also the entrance into the highway of an automobile driven by a third party. Plaintiff and her husband both denied observing any such other vehicle. It was their claim in substance that defendant crossed the center line of the road and thereby caused the accident. The case was tried before a jury which returned a verdict in favor of defendants. Plaintiff's motion for a new trial was denied and she has appealed. It is claimed in her behalf that certain prejudicial errors occurred in the course of the trial of such character as to constitute grounds for reversal.

At the conclusion of the proofs counsel for plaintiff requested that the court instruct the jury that defendant was guilty of negligence as a matter of law. The trial judge denied the request, and properly so. The testimony was in dispute as to how and why the accident occurred. Defendant in his testimony denied operating his vehicle in a negligent manner. It was his claim that he was confronted by a sudden emergency that resulted from the act of a third person whose identity was not disclosed by the proofs on the trial, that he was not responsible for the occurrence of such emergency, that faced therewith he undertook to avoid the accident by resorting to the attempted action described by him, that he knew that it was possible to spin an automobile and bring it to a sudden stop in that manner, that he had previously undertaken to do so, with success, and that no other possible way of avoiding a collision occurred to him at the time. Plaintiff's proofs were at variance with those of defendant. Under the circumstances it rested with the jury as the trier of the facts to weigh the testimony of the witnesses and to determine on the basis of all the evidence in the case the issue as to defendant's negligence.

Complaint is also made that the trial judge in submitting the case to the jury charged with reference to the so-called emergency rule without specifically referring in the first instance to the qualification of said rule, in other words, without advising the jury that the rule would not apply if the emergency resulted from the conduct of the one seeking to invoke its benefit. However, immediately following the reference to the effect of a sudden emergency the jury was charged as follows:

'The emergency doctrine in law means that a person who is operating a motor vehicle and suddenly is faced with an unusual or unsuspected situation is required to act as a reasonably prudent man would or might act under the same or similar circumstances; that is act as a reasonably prudent man would under like circumstances, however, if this emergency is brought about by his own carelessness and recklessness or negligent acts, then the emergency doctrine itself, of course, does not apply. If in this case you find that there was an emergency situation but you find that Mr. Vossen's acts brought about this situation, you will not then apply the emergency doctrine to the case as I have previously given it to you.'

In view of the language quoted we do not think that there could have been any misunderstanding on the part of the jurors as to the proper application of the emergency rule. The claim of prejudicial error in the charge with reference thereto is not well-founded.

Complaint is also made on behalf of appellant that in the charge to the jury repeated references were made to 'the proximate cause' of the accident and plaintiff's injuries therein. It is contended that the jury might have understood that there was no liability unless the negligence of the defendant was the sole proximate cause of the collision of the automobiles. This Court has repeatedly held that an injury and cause of action may result from more than one concurring acts of negligence. Thus in Gleason v. Hanafin, 308 Mich. 31, 37, 13 N.W.2d 196, 198, it was said:

'There may be two contributing causes of an injury. Welch v. Jackson & Battle Creek Traction Co., 154 Mich. 399, 177 N.W. 898. Where injury results from concurrent negligence of two or more persons, each proximately ibuting to the result, recovery may be had against one or more. Banzhof v. Roche, 228 Mich. 36, 199 N.W. 607. It is not essential to recovery that defendants' negligence be the sole cause of plaintiff's injury. Camp v. Wilson, 258 Mich. 38, 241 N.W. 844. There may be two proximate causes of an accident. Fitzcharles v. Mayer, 284 Mich. 122, 278 N.W. 788; Bordner v. McKernan, 294 Mich. 411, 293 N.W. 889; Wallace v. Kramer, 296 Mich. 680, 296 N.W. 838.'

See, also, Tracy v. Rublein, 342 Mich. 623, 631, 70 N.W.2d 819.

In Sedorchuk v. Weeder, 311 Mich. 6, 18 N.W.2d 397, 399, the Court, citing prior decisions, recognized the principle of law that there may be more than one proximate cause of an accident and held that the trial judge committed reversible error in referring throughout his charge to the jury to 'the proximate cause.' The Court declared that the charge as given 'was tantamount to an instruction that, before plaintiff could recover, he must show that defendant's negligence was 'the sole' proximate cause of the accident.' Under the proofs in the instant case the jury may have concluded that the party proceeding from the private drive to the public highway (assuming the correctness of defendant's proofs), or the driver of the automobile in which plaintiff was riding, or both, were guilty of negligence constituting contributing factors to the accident, and that defendant's negligence, if such there was, was not the sole proximate cause. In view of the proofs it is quite possible that the form of the charge as given resulted in prejudice to plaintiff's right to recover. Such being the case it must be considered erroneous.

At the time of the accident plaintiff and her husband were riding in the front seat of their automobile. In the rear seat were Mrs. Barringer's mother, Mrs. Hattie Martin, and two small children. At the time of the trial Mrs. Martin, as appears from the testimony, was 76 years of age. She was not called as a witness nor was any explanation offered on behalf of either party as to why she was not produced. At the request of defendant the trial court charged the jury as follows:

'In this case, the record shows that Mrs. Martin, the mother of Mrs. Barringer, was a passenger in the Barringer auto at the time of the accident and she has not been here produced as a witness nor has her absence been explained. The failure or...

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    ...was not available to Reetz, Kinsman's attorney could have commented on Reetz's failure to produce them. Barringer v. Arnold, 358 Mich. 594, 601-605, 101 N.W.2d 365 (1960); Grubaugh v. City of St. Johns, 82 Mich.App. 282, 289-290, 266 N.W.2d 791 (1978).25 "You see, I've dedicated my life to ......
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