Brugh v. Bigelow

• Decision Date: 30 November 1944
• Docket Number: No. 39.,39.
• Citation: 310 Mich. 74,16 N.W.2d 668
• Parties: BRUGH v. BIGELOW.
• Court: Michigan Supreme Court

310 Mich. 74

16 N.W.2d 668

BRUGH

v.BIGELOW.

No. 39.

Supreme Court of Michigan.

Nov. 30, 1944.

Action by Jennie Brugh against J. D. Bigelow for injuries allegedly resulting from attempting to render assistance to defendant and another who had been injured in an automobile accident allegedly caused by defendant's negligence. The trial court dismissed the action on motion before trial and plaintiff appeals.

Reversed and remanded.

Before the Entire Bench. Appeal from Circuit Court, Jackson County; John Simpson, judge.

Charles H. Baker, of Jackson (Felix F. Best, of Jackson, of counsel), for appellant.

Rosenburg, Painter & Navarre, of Jackson, for appellee.

REID, Justice.

This action is to recover damages for injuries claimed to have been caused by negligence of defendant in driving his automobile. Before trial on motion by defendant the court below dismissed the action.

Plaintiff's declaration alleges that on April 26, 1943, at about 7:20 p. m. defendant was driving his car in an easterly direction on a county highway and drove into an intersection of said highway with an important improved county highway running north and south between the city of Albion and Duck Lake resort at a point some six miles north of Albion in Calhoun county in this State; that he drove his car at an excessive rate of speed 55 to 70 miles per hour, a greater speed than would permit him to stop within the assured clear distance ahead, that in entering the intersection he failed to yield the right of way to northbound traffic and drove without regard to the safety of other traffic using the north and south road; that defendant negligently drove his car without giving any attention to the traffic on said intersecting highway, particularly the automobile being driven by Kenneth Dowding, which was approaching the intersection from the south; that the impact of the collision with Dowding's car caused plaintiff to be attracted by its sound and observing what had occurred, plaintiff was impelled by the situation created by the defendant to begin giving assistance to the injured, that she was summoned by defendant's cries and in view of his condition to go to his aid; that plaintiff observed defendant's automobile resting on its left side with the defendant and his passenger pinned beneath the car; that defendant was lying under the left rear wheel with the license plate of his automobile gouging in his forehead and the passenger, Wesley Swan, was underneath the left running board; that defendant called for assistance and that plaintiff after removing the passenger Swan aided in removing the defendant from underneath the car; that in order to remove the defendant it was necessary to lift the defendant's car; that in lifting the car and in the act of removing defendant the defendant's automobile righted itself, rolled backwards, and struck the plaintiff, throwing her to the ground and seriously injuring her, causing her hip to be fractured and causing her great and permanent injuries described in the declaration. The declaration also alleges that defendant was negligent respecting the duties and matters above recited and also, that he was negligent in creating a situation that would prompt plaintiff to respond thereto, imperiling her safety and causing her injury.

Defendant appeared and moved to dismiss on the ground that the declaration disclosed no cause of action, that on the basis of the facts set forth in the declaration no legal liability of the defendant is shown, that the facts stated in the declaration will create no liability on the part of the defendant and disclose no duty owed by the defendant to the plaintiff or violation thereof.

Defendant requests that the judgment of the court below dismissing the action be affirmed.

Plaintiff alleges that there was a duty on the part of the defendant to operate his motor vehicle with due care for the safety of others using the highway and those adjacent thereto and cites the case of LaDuke v. Township of Exeter, 97 Mich. 450, 56 N.W. 851,37 Am.St.Rep. 357. In that case plaintiff's horse caught a hind foot in a hole in the bridge on a public highway maintained by the township and while the horse was struggling to disengage himself, the other hind foot also was caught and the horse fell upon his knee. Plaintiff, in endeavoring to hold the horse until assistance should arrive, was injured by the struggles of the horse. It was contended that the negligence of the township in failing suitably to maintain the bridge was not the proximate cause of the injury. The court held the negligence of the township to be the proximate cause of plaintiff's injury.

Plaintiff further cited Wagner v. International Railway Co., 232 N.Y. 176, 133 N.E. 437, 438, 19 A.L.R. 1, 3, in which case defendant operated a railway between Buffalo and Niagara Falls. Plaintiff and his cousin boarded defendant's car near the bottom of a trestle, and were blocked by other passengers from entering the aisle. The conductor failed to close the door with the result that the excessive speed of the car at a sharp curve threw the cousin, Herbert, out over a bridge. The car stopped at the foot of the incline across the bridge. Plaintiff walked along the trestle 450 feet to a point where he thought he would find his cousin's body, but plaintiff there slipped and fell through the bridge to the ground, sustaining injuries for which the suit was brought. Justice Cardozo, writing the opinion concurred in by the Court, said: ‘The defendant says that we must stop, in following the chain of causes, when action ceases to be ‘instinctive.’ By this is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened. In this case the plaintiff walked more than 400 feet in going to Herbert's aid. He had time to reflect and weigh; impulse had been followed by choice; and choice, in the defendant's view, intercepts and breaks the sequence. We find no warrant for thus shortening the chain of...