Bell v. Merritt

• Court: Court of Appeal of Michigan
• Writing for the Court: V.J. BRENNAN
• Citation: Bell v. Merritt, 325 N.W.2d 443, 118 Mich.App. 414 (Mich. App. 1982)
• Decision Date: 09 November 1982
• Docket Number: Docket No. 56379
• Parties: Michael S. BELL, Plaintiff-Appellee, v. Harold J. MERRITT, Defendant-Appellant. 118 Mich.App. 414, 325 N.W.2d 443

Page 443

325 N.W.2d 443

Michael S. BELL, Plaintiff-Appellee, v. Harold J. MERRITT, Defendant-Appellant.

Docket No. 56379.

118 Mich.App. 414, 325 N.W.2d 443

Court of Appeals of Michigan.

Submitted May 4, 1982.

Decided July 21, 1982.

Released for Publication Nov. 9, 1982.

[118 MICHAPP 416] Tercha & Daavettila, Houghton, for plaintiff-appellee.

Garfield W. Hood, L'Anse, for defendant-appellant.

Before R.B. BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.

V.J. BRENNAN, Judge.

On the evening of January 10, 1980, plaintiff was struck by defendant's automobile while he was attempting to cross a highway. The jury found that both plaintiff and defendant were negligent. The jury attributed to plaintiff 65% of the fault of this accident and assessed plaintiff's recoverable damages at $42,000. From that judgment, defendant appeals as of right.

The testimony revealed that plaintiff attempted to hitchhike home after taking an examination at Michigan Technological University. Plaintiff managed to hitchhike partway to his fraternity house but had problems making a second connection. After trudging through the snow and darkness for [118 MICHAPP 417] some time, he observed a sign for a pay phone located across the road. As he was crossing the road, he was struck by defendant's automobile.

Defendant testified that his windshield wipers and headlights were in perfect working order. He additionally stated that his windshield was clean and his vision was not impaired. He estimated that his speed was somewhere around 45 miles per hour. There was testimony that either rain or snow was falling at the time.

Defendant stated that he saw the plaintiff for the first time when he was approximately 15 to 20 feet in front of the plaintiff. He instinctively applied the brakes, but there was insufficient time to stop and he struck plaintiff. Plaintiff was hit by the left front side of defendant's car.

There was testimony that, shortly before the impact, the defendant had passed an automobile which was proceeding in the opposite direction. The clothing of the plaintiff was described as either a dark or medium blue jacket and either beige, khaki, or brown corduroy pants. One person described plaintiff's appearance as he was lying alongside the road as "a big black object". A police officer testified that he had observed alongside the right side of the highway a set of footprints which showed that the person made an abrupt left turn onto the highway. The officer further concluded that plaintiff was close to the center of the road when he was struck.

Initially, defendant claims that the trial court erred when it failed to direct a verdict in his favor on the ground that there was no evidence that showed he was negligent. A directed verdict is proper if, after considering the evidence and all legitimate inferences therefrom in a light most favorable to plaintiff, no reasonable person could [118 MICHAPP 418] find that defendant was negligent. Hayes v. General Motors Corp., 106 Mich.App. 188, 192, 308 N.W.2d 452 (1981). In the instant case, the testimony established that the road was wet and slushy and that rain, freezing rain, or snow was falling. Defendant was travelling at a speed of 45 miles per hour at night. His vision was unobstructed, his windshield was clean, and his lights and wipers were in operating condition. Defendant testified that he did not see plaintiff until he was 20 feet in front of him. While the evidence was not overwhelming, it was sufficient to raise a jury question as to whether there was some negligence on the part of the defendant. Earls v. Herrick, 107 Mich.App. 657, 662, 309 N.W.2d 694 (1981), Beals v. Walker, 98 Mich.App. 214, 224, 296 N.W.2d 828 (1980), lv. gtd. 411 Mich. 900 (1981). Therefore, there was no error on the part of the trial court in failing to direct a verdict in defendant's favor.

Next, defendant claims that the trial court erred in failing to grant defendant's motion for a directed verdict upon the issue of subsequent negligence. Defendant's motion was made after completion of opening statements and was renewed at the conclusion of proofs.

A directed verdict after opening statement is proper only when the opening statement plus the pleadings fail to establish plaintiff's right to recover. Ambrose v. Detroit Edison Co., 380 Mich. 445, 453-455, 459-460, 157 N.W.2d 232 (1968). After reviewing the record, we find that plaintiff's opening statement and the pleadings in this case were sufficient to prevent a directed verdict after opening statement.

We also find that the trial court did not err in failing to grant the motion at the conclusion of proofs.

[118 MICHAPP 419] In Zeni v. Anderson, 397 Mich. 117, 152, 243 N.W.2d 270 (1976), the Supreme Court adopted 2 Restatement Torts, 2d, Secs. 479, 480, pp. 530, 535, as properly stating the law of last clear chance (subsequent negligence) in Michigan. Section 479 refers to the "helpless plaintiff" and states that a plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care and the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm when he knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it. Section 480 refers to the "inattentive plaintiff" and states that a plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence in time to avoid the harm to him can recover if, but only if, the defendant knows of the plaintiff's situation and realizes that the plaintiff is inattentive and, therefore, unlikely to discover his peril in time to avoid the harm and, therefore, is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

A directed verdict should not be granted whenever a fact question exists upon which reasonable persons can differ. Beals v. Walker, supra. We find that there was evidence indicating that plaintiff could fall into one of the two restatement categories as either a helpless plaintiff or an inattentive plaintiff. Plaintiff had no recollection of the accident. Defendant first saw plaintiff when plaintiff was 15 to 20 feet in front of him but was unable to [118 MICHAPP 420] stop. When plaintiff was hit he was almost in the middle of the road. Therefore, we find that the trial court properly denied defendant's motion for a directed verdict.

Defendant also asserts that plaintiff should have been required to concede negligence before asserting subsequent negligence. This claim lacks merit because it is not necessary that plaintiff elect between theories of subsequent negligence and negligence. St. John v. Nichols, 331 Mich. 148, 153, 49 N.W.2d 113 (1951), Leemon v. Leemon, 56 Mich.App. 424, 430, 224 N.W.2d 328 (1974).

In addition, defendant maintains that plaintiff could not base his claim on the doctrine of subsequent negligence because that doctrine does not survive the adoption of comparative negligence as established in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d...