Conant v. Bosworth, s. 57

• Citation: 50 N.W.2d 842,332 Mich. 51
• Decision Date: 07 January 1952
• Docket Number: Nos. 57,58,s. 57
• Parties: CONANT v. BOSWORTH (two cases).
• Court: Supreme Court of Michigan

Page 842

50 N.W.2d 842

332 Mich. 51

CONANT v. BOSWORTH (two cases).

Nos. 57, 58.

Supreme Court of Michigan.

Jan. 7, 1952.

Person & Searl, Lansing, for appellants.

Ballard, Jennings, Bishop & Fraser, Lansing (Everett R. Trebilcock, Lansing, of counsel), for appellee.

Before the Entire Bench, except BUTZEL, J.

CARR, Justice.

By agreement of counsel these cases were tried together in circuit court and the appeals have been consolidated. They arise from a traffic accident occurring on the 8th of March, 1949, on State trunk line highway M-43 a short distance west of the city of Lansing. Plaintiff Marjorie C. Conant was struck by an automobile driven by the defendant, and was severely injured. She brought suit to recover damages, and the other plaintiff, her husband, likewise sued to recover for the damages that he sustained arising from the injury to Mrs. Conant. As a matter of convenience the latter is herein referred to as plaintiff and appellant.

On the date mentioned plaintiff was a passenger on a bus traveling in a westerly direction on M-43. She alighted at Rosemary street, which runs south from the trunk line highway otherwise referred to in the record as Saginaw street. On the trial plaintiff claimed that the bus stopped on the north side of the pavement, which at that place was 22 feet in width, and that she alighted on the shoulder. Thereupon she walked around the rear of the bus and at a point on the pavement some 3 or 4 feet from the north edge looked first to the east and then to the west for approaching traffic. Not seeing any automobiles approaching, she started across to the south on a line approximately identical with the center of Rosemary street. She testified that when at the middle of the pavement she 'angled' to the west, it being her intention to proceed to her destination on the west side of Rosemary. She was nearly across the pavement when she observed defendant's automobile approaching her within a distance of approximately 10 feet. She then tried to avoid being struck by defendant's car but was unable to do so.

At the conclusion of plaintiff's proofs defendant moved for a directed verdict, alleging that negligence on the part of defendant had not been shown and that, in any event, plaintiff's testimony indicated that she was guilty of contributory negligence as a matter of law. The motion was taken under advisement by the court in accordance with the provisions of the Empson Act, C.L.1948, § 691.691 et seq., Stat.Ann. & Stat.Ann.1949 Cum.Supp. § 27.1461 et seq. It was renewed at the conclusion of the testimony, again taken under advisement, and the case submitted to the jury which determined the controversy in favor of the defendant. Judgment was entered accordingly. A motion for a new trial was made and denied. On appeal plaintiff claims that because of errors prejudicial to her occurring in the course of the trial the verdict and judgment should be set aside and a new trial granted.

It was plaintiff's position in circuit court that under the averments of her declaration, and under the testimony, she was entitled to have her alleged cause of action submitted to the jury on the theory of subsequent negligence on the part of the defendant constituting the proximate cause of the accident, as well as on the basis of ordinary negligence. After charging the jury with reference to the matters of negligence, proximate cause, contributory negligence, credibility of witnesses, and other pertinent matters, the trial judge gave plaintiff's request to charge on the matter of subsequent negligence. It is appellant's position that such charge was proper.

After deliberating for approximately two hours the jury returned to the courtroom for further instructions. The statement of the foreman indicated that the members of the jury were uncertain whether they could consider 'the degree of negligence' in case they found both parties guilty of negligence contributing to the accident. By way of further instructions the trial judge advised the jury that the law of this State does not recognize degrees of negligence, and, further, 'If there is any contributory negligence on the part of the plaintiff, they cannot recover. That is the question. That is the answer.' Thereupon the jury retired, and 10 minutes later returned the verdict. On behalf of plaintiff it is contended that the statement by the trial judge, above quoted, in effect withdrew from the jury the matter of subsequent negligence as a possible basis for recovery. It is argued that reversible error was thereby committed.

Assuming that a cause of action based on subsequent negligence was properly averred in the declaration, were the proofs on the trial sufficient to permit submission to the jury of plaintiff's claimed right to recover on that basis? Defendant asserts that if plaintiff was guilty of negligence such conduct continued until the accident was unavoidable. Attention is directed to prior decisions of this Court recognizing the rule that in a case where the negligence of the party seeking to recover damages has continued to the point where avoidance of injury is impossible, and such injury results from the concurring negligence of the parties, recovery on the theory of subsequent negligence is not permissible. In Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398, 401, it was said:

'When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff in injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 R.C.L. 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or willful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule. Other misconduct, different in kind, is also generally and incorrectly known as gross negligence, as we shall see later. Richter v. Harper, 92 Mich. 221, 54 N.W. 768; Kelley v. Keller, 211 Mich. 404, 179 N.W. 237; Fike v. P. M. R. Co., 174 Mich. 167, 140 N.W. 592; Knickerbocker v. Detroit etc., R. Co., 167 Mich. 596, 133 N.W. 504; Buxton v. Ainsworth, 138 Mich. 532, 101 N.W. 817, 5 Ann.Cas. 146.

'The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts (2d Ed.), 674; Labarge v. Pere Marquette R. Co., 134 Mich. 139, 95 N.W. 1073.

'If the plaintiff is in a position which has become dangerous, and he is free from negligence, and the defendant knows, or ought by the exercise of ordinary care to know, of plaintiff's peril, and nevertheless negligently injures him, there is no occasion to invoke the doctrine of gross negligence to excuse negligence of plaintiff, for there is no negligence of plaintiff to be excused. Schnurr v. Detroit United R., 222 Mich. 591, 193 N.W. 772.

'If the negligence of a plaintiff is concurrent with the negligence of a defendant, the rule as to antecedent negligence of plaintiff and subsequent negligence of defendant does not apply. The doctrine of gross, subsequent, or discovered negligence may not be invoked to excuse concurrent negligence of a plaintiff. Labarge v. Pere Marquette R. Co., supra; Krouse v. [Southern] Railway Co., 215 Mich. 139, 183 N.W. 768; Thompson on Neg., § 208; Dyerson v. Union Pac. Ry. Co., 74 Kan. 518, 87 Pac. 680, 7 L.R.A.,N.S., 132, 152; Smith v. Conn. Ry. & Lighting Co., 80 Conn. 268, 67 A. 888, 17 L.R.A., N.S., 707; Neary v. Northern Pac. Ry. Co., 37 Mont. 461, 97 Pac. 944, 19 L.R.A.,N.S., 446; Southern R. Co. v. Bailey, 110 Va. 833, 67 S.E. 365, 27 L.R.A.,N.S., 379; Huddy on Automobiles (5th Ed.) 610. And see Richter v. Harper, 95 Mich. 221, at page 225, 54 N.W. 768.'

The above decision was cited and followed in Howell v. Hakes, 251 Mich. 372, 232 N.W. 216, 217, where it was recognized that if there was concurrent negligence of the parties the doctrine of subsequent negligence could have no application. With reference to the specific facts involved, it was said: 'In order that there be intervening negligence on the part of the defendant, it is necessary that the plaintiff's antecedent negligence should have ceased. The evidence is that it continued up to the time of the impact, that is, assuming that the cars collided on the pavement. The doctrine of subsequent negligence is not applicable. The court was right in refusing to submit it. We find no error.'

In the case at bar the facts established by the evidence were such as to fully support a conclusion that defendant was negligent in the operation of his automobile. The colloquy between the trial judge and the foreman of the jury at the time, above referred to, when instructions with reference to degrees of negligence were asked, suggests that the jurors had then determined that neither party had observed due care. Such was the situation in Boerema v. Cook, 256 Mich. 266, 239 N.W. 314, 315, in which the Court, after referring to the conduct of the plaintiff, said:

'His negligence consisted in failing to keep a lookout as he was crossing to see if he could continue on in safety. The requirement that one must use reasonable care for his own protection was not satisfied with the single observation which plaintiff made before entering the intersection. The situation was such as to call for further observation. Throughout the distance which he traveled before the collision, his view was unobstructed. If he had looked again, he would have seen the defendant nearby bearing down on him at a high rate of speed. If he had looked he would have realized his danger in time to have avoided the collision either by accelerating his speed or reducing it. In view of the...