Campbell v. Brown

• Decision Date: 16 June 1936
• Docket Number: No. 52.,52.
• Citation: 267 N.W. 877,276 Mich. 449
• Parties: CAMPBELL v. BROWN et al.
• Court: Michigan Supreme Court

276 Mich. 449

267 N.W. 877

CAMPBELL

v.BROWN et al.

No. 52.

Supreme Court of Michigan.

June 16, 1936.

Action by Louise Campbell against H. Stanley Brown and another. From the judgment, plaintiff appeals, and the defendants cross-appeal.

Judgment vacated, and new trial granted.

Appeal from Circuit Court, Allegan County; Fred T. Miles, judge.

Argued before the Entire Bench.

Carl E. Hoffman, of Allegan (Clare E. Hoffman, of Allegan, of counsel), for appellant.

Howard, Howard & Howard, of Kalamazoo, for appellees and cross-appellants.

BUSHNELL, Justice.

On the evening of July 14, 1934, plaintiff was struck by a car owned by Bernard McGuire, a minor, and driven by H. Stanley Brown, the title of which stood in the name of Bernard's father, Bert McGuire. Mrs. Campbell, a widow, who was then 68 years old, had, according to defendant Brown, safely negotiated the north half of the road which runs east and west and ‘was over the middle’ when she seemed to hesitate, then started on, and Brown attempted unsuccessfully to ‘pass her on the left side.’ She suffered numerous abrasions of the body, a contusion of the left occipital, and the fibula of her left leg was broken. She was unconscious for 5 days and remained in the hospital 76 days; her total medical expenses up to this time had been $736.70. Before the accident, she was quite active in the discharge of her household duties, even to caring for her yard and furnace. After her injury, she was obliged to board for a while in the homes of friends, and finally could dress herself, but, when walking outdoors, required some assistance.

It appears that plaintiff had been accustomed to wintering in Florida, and on the following December 15th, accompanied by the lady with whom she was then boarding, she went to her winter home, where this friend remained with her for about 3 weeks. Thereafter she was assisted by some young people who also occupied her Florida home. Mrs. Campbell said she had not fully recovered by March 16th, and testified that her condition at this time was as follows:

‘While I could get around I could not go up and down the stairs like I usually had with one foot after another. I had to go one foot at a time and drag the other, take hold of something to assist me. If I got down on the floor I could not get up. If anything happened I would sit on the floor to fix my shoes or anything I could not get up. I dressed myself. There was very little cooking. I warmed up a little something. Very little housekeeping of any kind. My room was looked after. My washing and ironing was done. I was helpless in that way.

‘Q. In what way were you helpless? A. Because I could not do what I always had done. I know how to work. I could not work then.’

Plaintiff's declaration alleges that, as a result of the automobile injury and without any negligence on her part, she subsequently fell and sustained an intracapsular fracture of the left femur, thereby causing further expense and additional pain and suffering, all of which was due to the original negligence of defendants.

At the beginning of the trial, the court ruled that plaintiff's counsel could not include in his opening statement any reference to the subsequent injury, it being too remote; nor was plaintiff allowed to present any testimony in support of this portion of her declaration.

After denial of plaintiff's motion for a new trial and defendants' request for a directed verdict and judgment non obstante veredicto, a judgment was entered for plaintiff against both defendants for $1,250 in accordance with the verdict of the jury.

All parties appeal, plaintiff urging errors on the court's rulings as to the subsequent injury and the trial judge's refusal to grant a new trial, in the face of what she claims is a grossly inadequate verdict. Defendants' sole claim of appeal is that they were entitled to a directed verdict, because plaintiff was guilty of contributory negligence as a matter of law.

Defendants' claim of error must be considered in the light most favorable to plaintiff. Their own witness Brown admits that plaintiff was plainly visible on the highway and beyond its center when he first saw her, and that the impact occurred when both were on the left side of the road. He was ‘driving approximately down the middle of the highway’ in a westerly direction and she was walking across the road in a southerly direction when he first observed her 12 or 15 feet away.

Defendants' question is answered by Rowland v. Brown, 237 Mich. 570, 576, 213 N.W. 90, 93: ‘We know of no authority holding it is contributory negligence as a matter of law if a pedestrian does not continue to look after passing the center of the street for automobiles running on the wrong side of the street, although an automobile is in sight approaching on its right side of the street which the pedestrian had just crossed.’ Defendants' contributory negligence under these circumstances is a question for the jury.

The adequacy of amount of a verdict is also generally a matter for the jury. We do not substitute our judgment on this question unless a verdict has been secured by improper methods, prejudice, or sympathy. Michaels v. Smith, 240 Mich. 671, 216 N.W. 413. No such showing has been made, nor is the verdict so inadequate as to shock the judicial conscience. Watrous v. Conor, 266 Mich. 397, 254 N.W. 143. See, also, Sebring v. Mawby, 251 Mich. 628, 232 N.W. 194. However, we do not pass upon this question in the instant case because of the conclusions hereinafter stated.

The rulings of the court with respect to the allegations of the subsequent injury and liability of defendants therefor presents a more difficult problem. Certain authorities on this subject have been annotated in 9 A.L.R. 255, and 20 A.L.R. 524, among them being the case of Stahl v. Southern Michigan R. Co., 211 Mich. 350, 178 N.W. 710, 711, from which we quote:

‘If the suit case injury was the...