Clark v. Shefferly
Decision Date | 04 September 1956 |
Docket Number | No. 12,12 |
Citation | 78 N.W.2d 155,346 Mich. 332 |
Parties | Abraham CLARK, Plaintiff and Appellee, v. Henry SHEFFERLY and Abe Nabato, Defendants and Appellants. |
Court | Michigan Supreme Court |
Edward N. Barnard, Detroit, for defendants-appellants.
A. Lewis Fineberg and Gabriel Cohn, Detroit, for plaintiff-appellee. Robert D. Anspach, Detroit, of counsel.
Before the Entire Bench.
This negligence case was tried to court and jury in Detroit common pleas. Verdict and judgment for plaintiff in the sum of $1,133.33 resulted in appeal to and affirmance by the Wayne circuit court. Defendants appeal to us for reversal of such affirming judgment.
The circuit judge, by careful opinion, assembled the facts and declared his decision on appeal as follows:
'Plaintiff boarded and becaume a passenger in defendants' cab at about 6 A.M. on February 12, 1955. He entered the cab in the vicinity of Adams and St. Antoine and directed the driver to take him to 2355 Fullerton Avenue in the same city. It was a dark night and it had been snowing. There was ice on the streets. When the cab arrived at the Fullerton destination, plaintiff paid his fare while still in the cab and opened the right rear door and started to get out of the cab.
'The plaintiff then testified to the happening of the accident as follows:
'The plaintiff's small finger on his right hand was injured. The defendant, Nabato, who was driving the cab, took the plaintiff to the Highland Park General Hospital. The plaintiff had two operations on his finger which entailed grafting. He was unemployed for three weeks and two days. The hospital bill was two hundred and forty-seven dollars, and the doctor bill was one hundred and forty dollars.
'At the conclusion of plaintiff's proofs, the defendants made a motion for no cause for action, which was denied. The case went to the jury, and the jury returned a verdict of one thousand one hundred thirty-three dollars and thirty-three cents against both defendants. The defendants appealed.
'The defendants cited the cases of McIntyre v. Kunsky Theatres Corporation, 256 Mich. 634 ; Camp v. Spring, 241 Mich. 700 ; Abent v. Michigan Cab Company, 279 Mich. 617 ; Kerr v. City of Detroit, 255 Mich. 446 , in support of their appeal. In each of those cases the plaintiff was found to be guilty of contributory negligence. Plaintiff having placed his fingers or hand in the jam of the door, which was a dangerous position, was found to be the negligence. In the Abent case, supra [279 Mich. 617, 273 N.W. 290], the Court stated:
"Ordinarily a doorjamb or crack is no place for fingers.'
First: The initial question is fairly disclosed in the circuit judge's aforesaid ruling. He rightly appraised as inapplicable the cases cited by defendants and found that they afforded no ground for direction of a verdict. This is a simple case of averred negligence and freedom from contributory negligence presenting questions of fact only on the proof, and it is controlled so far as right to a directed verdict is concerned by common-law rules given in Detroit & Milwaukee Railroad Co. v. Van Steinburg, 17 Mich. 99 1. The jury was entitled to find in accordance with plaintiff's theory and favorably-viewed testimony that the cab driver should have delayed his start until plaintiff, whose left hand rested on the opened door of the cab, was safely clear of the cab. It, the jury, was likewise entitled to find from such testimony that the cab driver could and should have perceived, considering slippery condition of the pavement and the fact of the open door, that plaintiff was momentarily steadying himself by such means and might be injured by immediate forward movement of the cab. Indeed, it cannot be seriously questioned that the proof when favorably viewed discloses causal negligence on the part of the cab driver 2.
So the real question in the case is the issue of contributory negligence. When we undertake to test a motion for direction of verdict addressed to contributory negligence, our duty is to judge the plaintiff's conduct, not alone by what he did or did not do, but by the conjoining facts pertaining to conduct of his adversary litigant. Mr. Justice Cooley picks up from here. I quote as follows from report in the Van Steinburg case, pages 118-119 of 17 Mich.:
(Emphasis mine.)
Van Stenburg gives us the...
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