Dodd v. Secretary of State

Decision Date18 December 1973
Docket NumberNo. 11,S,11
Citation213 N.W.2d 109,390 Mich. 606
PartiesRoy Donald DODD, Plaintiff-Appellant, v. SECRETARY OF STATE et al., Defendants-Appellees. ept. Term. 390 Mich. 606, 213 N.W.2d 109
CourtMichigan Supreme Court

Daniel A. Burress, P.C., Livonia, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, S. Gen., Joseph B. Bilitzke, Carl K. Carlsen, Asst. Attys. Gen., Michigan Dept. of State MVACF-LEGAL, Secondary Complex, Lansing, for defendants-appellees.

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

This case is before us on leave granted from a decision of the Court of Appeals, 43 Mich.App. 293, 204 N.W.2d 346 (1972) 1 upholding a directed verdict in favor of the defendant. The trial court held that there were insufficient facts and inferences therefrom presented in this hit and run case upon which the negligence of the driver could be submitted to the jury. We disagree.

At 1:30 a.m. on January 12, 1967 the plaintiff was struck by a hit-run vehicle while he was in the process of crossing Grand River Avenue near Lesure in the city of Detroit. The driver of the vehicle was never found.

In his brief on appeal to this Court, plaintiff-appellant sets forth a statement of facts, which is accepted by the defendant-appellee. That statement is as follows:

'Grand River is a wide, seven-lane artificially lighted, paved road, running in a northwesterly direction from downtown Detroit. Lesure runs generally north and south and ends at Grand River. The collision took place in a locality described as 'business'.

'Sidewalks are installed along each side of Grand River and Lesure. On the date of the accident the weather was clear, the road was dry and it was cold. No pedestrian cross-walk is provided at this intersection. Prior to the collision plaintiff, Roy Dodd, born August 10, 1909, had consumed two or three drinks at Snack's Bar which is located on the southerly side of Grand River at approximately at the point where Lesure would cross Grand River were it not a dead-end street. He left at the same time as Marie Autrey, a waitress at the bar. Mrs. Autrey, a widow and mother of two children, had some conversation with plaintiff at the front entrance of the bar, closed and locked the door, saw him walk from the bar and step off the curb; she then turned and proceeded toward her car in the parking lot. At this time she did not notice any traffic on Grand River. After she unlocked and opened the car door she heard a 'thud' and turned and saw Mr. Dodd up in the air. The car was still there but kept going. She then went over to plaintiff, returned to the bar to have the police called and went back and put her coat over him and waited for the police and ambulance to arrive. Plaintiff was not conscious and did not talk. His trousers were down around his ankles, his hat was off, and his glasses, which he had been wearing previously were not on.

'Mrs. Autrey gave a statement to the police and showed them approximately where the accident took place. At the location, which was the second lane from the northerly curb, they found 34--35 feet of skid marks.

'She testified that when she heard the thud she turned and saw plaintiff up in the air over the left front fender. The automobile was in the second lane from the northerly curb. She also testified that when Mr. Dodd left the bar he appeared to be walking and talking normally.

'Plaintiff testified that he had two or three drinks in the bar, left at the same time as Mrs. Autrey, went to the curb, looked, saw no traffic, and proceeded to the middle of the street; he started crossing Grand River at a point opposite the sidewalk of Lesure; when he arrived at the middle of the street he then looked both ways again, saw nothing and went on across. He had crossed five lanes and was in the sixth lane when he was struck. He did not hear any brakes or horn or see any lights prior to being struck. He further testified that his physical condition at the time was okay.

'Mrs. Autrey testified that when she saw the car after hearing the 'thud' she saw tail lights but did not hear the sound of brakes screeching. She is aware that tail lights come on when brakes are applied. She also testified that the car was traveling at a speed of 25 or over. The speed limit is 35 miles per hour. Additionally, she testified that she did not observe the car too long after striking Mr. Dodd because she was concerned for him and was upset.'

The record reveals she further testified that she did not see any headlights on the car, nor did she see any beam from a headlight. She did state, however, she only saw the rear of the car and never saw the front end.

Pursuant to the provisions of M.C.L.A. § 257.1112; M.S.A. § 9.2812 suit was brought against the Secretary of State for the injuries suffered by Mr. Dodd in the accident. The sole question presented this Court is whether or not the facts testified to above are sufficient to require the submission of the case to the jury on the question of whether or not the driver of the hit-run vehicle was negligent in its operation, which negligence was a proximate cause of the accident.

The standard governing whether or not a case must be submitted to the jury was originally set forth by Justice Cooley in Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99 (1868) as follows (pp. 122, 123):

'It is a mistake, therefore, to say, as is sometimes said, that when the facts are undisputed the question of a negligence is necessarily one of law. This is generally true only of that class of cases where a party has failed in the performance of a clear legal duty. When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence can not be determined until one or the other of those conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain and incontrovertible, or they can not be decided upon by the court. Negligence can not be conclusively established by a state of facts upon which fairminded men may well differ. In Ireland v. Oswego R.R. Co., 13 NY, 533, Judge Johnson, speaking upon this subject, says: 'The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as matter of law. On the contrary, it is almost always to be deduced as an inference of fact, from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their force and weight considered. In such case the inference can not be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement which is consistent throughout. Presumptions of fact, from their very nature, are not strictly objects of legal science, like presumptions of law. That the care exercised by the plaintiff at the time of the injury, and the negligence of the defendant, were both questions for the jury to determine, can not admit of any doubt."

This standard was reaffirmed by this Court in McCullough v. Ward Trucking Co., 368 Mich. 108, 117 N.W.2d 167 (1962) where this Court stated (p. 111, 117 N.W.2d p. 168):

'The decisional test comes from the pen of Mr. Justice Cooley, reflected in Bronson v. Oakes (CCA 8), 76 F. 734, 739, 740 (following Jones v. East Tennessee V. & G.R. Co., 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478, and Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485):

"When it can be affirmed that all reasonable men would agree as to the quality of an act in respect of its being either negligent or prudent, the court may give effect to such consensus of opinion, and direct a verdict in accordance therewith. The direction is given, not because it is the judge's opinion alone, but because the judge is able to say that it is also the opinion that all reasonable men would entertain of the question. If there is doubt as to whether all reasonable men would draw the same conclusion from the evidence, then the question must be submitted to the 12 reasonable men appointed by the Constitution to determine disputed or doubtful questions of fact. The rule on the subject is well stated and illustrated by Judge Cooley in delivering the opinion of the court in Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 118."

In applying this standard to the facts of the instant case, we view the testimony in the light most favorable to the plaintiff and draw the reasonable inferences therefrom which are in his favor. Levesque v. La Fortune, 347 Mich. 443, 83 N.W.2d 333 (1957); McCullough v. Ward Trucking Co., Supra.

Plaintiff testified that he looked both ways and saw no traffic as he started to cross Grand River. He also testified he stopped and again looked both ways when he reached the middle of the street. He did not see any lights or hear any brakes or horn prior to being struck.

Mrs. Autrey testified she saw no lights other than tail lights on the hit-run car. She saw no beams from its headlights.

These facts alone are sufficient to enable this case to go the jury. A jury could have found that the hit-run car was traveling without lights, in violation of our Motor Vehicle Code, and by so doing was negligently operated. The fact that tail-lights on a car are operable, does not mean that the headlights necessarily are in working order also. The rear brake lights also come on when the brakes are applied. This is so even if the headlights on the car are not on. The jury could have reasoned that the car's lights were in working order but not turned on. This would explain why the witness saw brake lights but no beams from the headlights.

In addition, there was testimony that the hit-run car may have left 34--35 feet of skid marks. This, however, was contradicted by the plaintiff and witness who both testified they heard no sound of...

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