Brown v. Ross
| Decision Date | 01 March 1956 |
| Docket Number | No. 21,21 |
| Citation | 75 N.W.2d 68,345 Mich. 54 |
| Parties | Archibald M. BROWN, Plaintiff and Appellant, v. Ward W. ROSS, Ward W. Ross, Inc., a Michigan corporation, Robert J. Shannon, Dale B. Preston, and Walter Bindig, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Dudley & Patterson, Pontiac, for plaintiff and appellant.
Alexander, Cholette, Buchanan, Perkins & Conklin, Richard A. Harvey, Detroit, for defendants and appellees, Ward W. Ross, Ward W. Ross, Inc., a Michigan Corporation, and Walter Bindig.
Herbert H. Hunting, Detroit, for Robert J. Shannon, defendant and appellee.
Dyer C. Baird, Detroit, for Dale B. Preston, defendant and appellee.
Before the Entire Bench.
Plaintiff brought this action in circuit court to recover damages for personal injuries claimed to have resulted from negligence on the part of the defendants. On June 14, 1952, at approximately 4 o'clock in the afternoon, defendant Binding was operating a truck on Middlebelt Road in Farmington Township, Oakland County. At the same time defendant Preston was driving a Chevrolet sedan on Northwestern Highway. The vehicles were simultaneously approaching the intersection of said thoroughfares, and in some manner came in contact therein. As a result of the impact the sedan was deflected from its course and into a service station located at the northeast corner of the intersection. The vehicle struck a gasoline pump, knocking it over and causing the gasoline to ignite. Shortly before the accident occurred plaintiff had driven his son, who worked in the service station, to the premises, and had stopped his car beside one of the pumps. The son, Glenn Brown, was about to put gasoline in his father's automobile at the time defendant Preston's Chevrolet entered the premises with the result above set forth.
On observing the burning gasoline plaintiff drove his car to a place in proximity to Northwestern Highway, where he apparently considered that it would be reasonably secure from damage. In the meantime his son Glenn obtained a fire extinguisher and attempted to put out the blaze. When plaintiff returned from parking his car he took the extinguisher from Glenn, telling the latter to call the fire department. The operator of the station gave a like direction and Glenn immediately went into the service station building to a telephone for the purpose suggested. Plaintiff and the operator of the station approached the fire and attempted to extinguish it. The efforts were unsuccessful and a sudden burst of flame caused the clothing of plaintiff to become ignited. As a result he was seriously burned, was hospitalized for a period of 24 days, and was out of work for two months.
In the declaration filed by plaintiff in the cause it was alleged that defendant Preston was guilty of negligence in operating his car across the intersection at an excessive rate of speed, without having it under proper control, and without keeping a reasonable outlook for other traffic. It was also alleged that defendant Bindig failed to exercise proper care in the operation of the truck driven by him in that he disregarded a 'stop' sign, and that in general he operated his vehicle in a careless and negligent manner. Defendant Shannon was the owner of the car driven by Preston, but in his answer to the declaration he denied that it was being operated at the time of the accident with his knowledge and consent. The declaration averred that the truck driven by Bindig was owned by either defendant Ross or by Ward W. Ross, Inc. The answer of said defendants admitted that the corporation was the owner. The defendants also denied that plaintiff at the time he received his injuries was free from contributory negligence, as claimed by him in his pleading.
The case was tried before a jury. On behalf of plaintiff testimony was introduced tending to support the averments of his declaration as to the negligence of the drivers of the two vehicles involved in the collision. At the conclusion of his proofs counsel representing the defendants joined in a motion for a directed verdict in their favor, on the ground that under the evidence plaintiff had voluntarily exposed himself to the risk of injury and could not thereby increase the liability of defendants resulting from their antecedent negligence, if there was such. The motion was considered by the trial judge as based on the claim, in substance, that plaintiff was guilty of contributory negligence as a matter of law and was, in consequence, barred from recovery. The verdict was directed on that basis and judgment entered for the defendants. Plaintiff has appealed, claiming that the issue as to his contributory negligence should have been submitted to the jury, with the other questions raised by the pleadings and the proofs.
On behalf of plaintiff it is contended that he subjected himself to the risk of injury in order to save his son from harm. On the trial in circuit court, after testifying with reference to the accident and his injuries from the burning gasoline, plaintiff said:
The further argument is suggested on behalf of plaintiff that as long as the gasoline continued to burn, the service station and all persons on the premises were in danger because of the risk of a possible explosion and the results that might ensue. In considering whether the motion for directed verdict was properly granted, the general rule must be recognized that the testimony is to be construed as strongly as is reasonably proper in favor of the plaintiff. If is also true that each case of this nature must be considered on the basis of the facts involved as shown by the proofs. In consequence, prior decisions of this Court, and of the courts of other States, involving different factual situations than presented here are of assistance only to the extent that they recognize and apply certain controlling principles.
In view of plaintiff's claim that he acted under circumstances that did not permit deliberation as to the course that he should follow, the following statement found in 38 Am.Jur., p. 686, is in point:
In Brugh v. Bigelow, 310 Mich. 74, 16 N.W.2d 668, 158 A.L.R. 184, plaintiff sought to recover damages for injuries sustained while attempting to assist defendant following an automobile accident claimed to have resulted from defendant's negligence. Plaintiff claimed that she discovered defendant, and another, beneath an automobile which was resting on its side. While endeavoring to render assistance, said automobile was righted, rolled backward, and struck plaintiff, causing serious injuries. Motion to dismiss the declaration was granted by the trial court. On appeal this Court reversed, holding that the issues raised were proper ones for determination by a jury. This case is reported in 158 A.L.R. 184, followed by an extensive annotation relating to liability for injuries to one seeking to rescue another from danger.
In Tarnowski v. Fite, 335 Mich. 267, 55 N.W.2d 824, plaintiff sought to recover damages for personal injuries claimed to have been received by her when the taxicab in which she was riding stopped suddenly. The case was tried before the circuit judge without a jury, the proofs indicating that plaintiff had with her in the cab a young child whom she sought to save from injury when the cab driver applied the brakes, and that she sustained her injuries in that attempt. There was testimony in the case to the effect that plaintiff permitted the child, who was two years old, to stand on the floor of the cab. On the basis of the proofs before him the trial judge decided the case in favor of the defendant, finding as a fact that plaintiff was guilty of contributory negligence. In sustaining the decision this Court directed attention to proofs indicating that plaintiff was negligent in allowing the child to stand on its feet in the cab prior to the alleged sudden stopping of the vehicle. The case was determined not on the theory that plaintiff was guilty of contributory negligence as a matter of law but on the ground that the testimony fairly indicated that she was in fact guilty of negligence constituting a proximate cause of the injuries.
The recent decision in Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805, involved...
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Solomon v. Shuell
...supra, 137 Mich.App. at p. 26, 357 N.W.2d 783.28 See, e.g., Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805 (1955); Brown v. Ross, 345 Mich. 54, 75 N.W.2d 68 (1956); Hughes v. Polk, 40 Mich.App. 634, 199 N.W.2d 224 (1972), lv. den. 388 Mich. 770 (1972).29 Sweetman v. State Hwy. Dep't, 137 Mic......
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Solomon v. Shuell
...factual situations where the victim was in actual peril. See Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805 (1955); Brown v. Ross, 345 Mich. 54, 75 N.W.2d 68 (1956); Hughes v. Polk, 40 Mich.App. 634, 199 N.W.2d 224 (1972), lv. den. 388 Mich. 770 (1972). In Sweetman, supra, this Court's most ......
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Hughes v. Polk
...Railway Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1; Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805 (1955); Brown v. Ross, 345 Mich. 54, 75 N.W.2d 68 (1956). In Parks v. Starks, Supra, 342 Mich. at 449--450, 70 N.W.2d 805, 808, the Supreme Court 'In response, however, to defendant's insiste......
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Dowell v. General Tel. Co. of Michigan
...in the court's requirement that the plaintiff's actions be reasonable, and the Supreme Court has suggested as much in Brown v. Ross, 345 Mich. 54, 63, 75 N.W.2d 68 (1956). The ultimate question in this regard is whether the plaintiff's behavior was reasonable, and whether it was properly su......