Frederick v. City of Detroit, Dept. of St. Railways

• Decision Date: 06 June 1963
• Docket Number: No. 70,70
• Citation: 370 Mich. 425,121 N.W.2d 918
• Parties: Rose FREDERICK, Plaintiff and Appellant, v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 918

121 N.W.2d 918

370 Mich. 425

Rose FREDERICK, Plaintiff and Appellant, v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS, Defendant and Appellee.

No. 70.

Supreme Court of Michigan.

June 6, 1963.

Francis J. McDonald, Detroit, for plaintiff and appellant.

Ralph L. Hayes, Detroit, for defendant.

Before the Entire Bench.

SOURIS, Justice (for affirmance).

Plaintiff seeks reversal of an adverse jury verdict and denial of her subsequent motion for new trial on the ground that the trial judge instructed the jury improperly on the degree of care owed by a common carrier to its passengers. The case went to the jury on plaintiff's theory that defendant negligently permitted the rubber flooring of its bus to become worn and dirt to accumulate thereon and that it negligently omitted to provide a railing for the support of passengers alighting from its bus to the street. It was her claim that while leaving the bus she slipped on the worn, dirty flooring and, absent a railing which she could grasp for support, fell to the ground and suffered injuries.

The language of the instruction challenged by plaintiff is as follows:

'Now, I will say this to you at this point; that the D. S. R. is not liable unless they were negligent. They are not an insurer. They are a common carrier. A common carrier has, in the vernacular, a higher degree,--owes a higher degree of care to its passengers than a person ordinarily owes to another person. Now, that definition is open to question; because the actual definition reads that they have the duty,--anyone has the duty to exercise due care. That is the general test of negligence. Do you exercise due care? And, what do you mean by 'due care'? Due care means that amount of care that a reasonably prudent person would exercise under the circumstances then and there existing. But where the common carriers come into a different category, as it were, is the fact that it is more difficult for a common carrier to measure up to the standard of due care than it is for an ordinary person. The reason for that greater difficulty is precisely because he is a common carrier; he is carrying people for hire; and that makes him something less than an insurer, but someone who should exercise more care, in order to come up to the standard of due care, than an ordinary person. So, the Supreme Court in this state has sometimes referred,[370 Mich. 428] --and I personally believe erroneously,--to the fact that the common carrier owes a higher degree of care. I think that that is ultimately what it amounts to, but I think that is a very inaccurate way of stating it. They owe due care just like everybody else, but they have a harder time reaching that standard than the ordinary person does; which I think is the correct way to put it. They are not insurers. Everybody that travels on a bus cannot travel with the assurance that if he gets hurt, the bus company is bound to pay for his injuries, or the city is bound to pay for his injuries. If they were insurers, they would have to; but they are not. However, they do have that high standard to meet, that all public carriers have. They have to measure up to the test of due care owed by a bus company. If this lady slipped due to her own fault, the D. S. R. is not liable. If they are to be liable, you must find that the D.S.R. did something that they should not have done; or they failed to do something that they should have done. That is the only way the D. S. R. can be found liable in this case. Now, either they had the handrails there, or they didn't; they should have had them there, and they didn't have them there; there was something on the floor, and it shouldn't have been there; or they should have removed it, and they didn't; or there was a slippery mat that was worn and dangerous, or there wasn't. Now, you are the people that must determine those issues. * * *

'What is negligence? I will define it. Negligence is the failure to use that amount of care that a reasonably prudent person would use under the circumstances. That is the standard by which the D. S. R. liability must be measured in this case. You must ask yourselves, did the D. S. R. use the usual amount of care in this case that a common carrier, a reasonable common carrier, would and should use. That is the standard you go by when you are determining liability * * *.'

Citing DeJager v. Andringa, 241 Mich. 474, 217 N.W. 332; Durfey v. Milligan, 265 Mich. 97, 251 N.W. 356; Trent v. Pontiac Transportation Co., Inc., 281 Mich. 586, 275 N.W. 501; and Bordner v. McKernan, 294 Mich. 411, 293 N.W. 889, plaintiff contends the trial judge erred in not clearly and concisely instructing the jury that she was owed a high degree of care, not just ordinary care, from the D. S. R. She claims that the instruction given, for all practical purposes, advised the jury that common carriers owe their passengers the same degree of care and diligence that others owe one another in the pursuit of their daily affairs. Without denying that the instruction can be read to impose upon carriers only a duty of due care as plaintiff contends, defendant maintains that it can, and should, be read as requiring no less than 'a high degree of care,' claimed by defendant to be a correct statement of its duty, by its reference to the greater difficulty a common carrier has in measuring up to a standard of due care than does an ordinary person and by its statement that a common carrier, because it carries people for hire, should exercise more care than an ordinary person. I agree with plaintiff that the instruction imposes upon defendant only the duty of due care, but that, in my view, is a correct statement of the law of this state, some of our prior opinions to the contrary notwithstanding and further notwithstanding the defendant's apparent reluctance to urge upon us such interpretation of the law more favorable to it than that which it uncritically assumes to be the law.

We have recently expressed disapproval of contributory negligence instructions which expressly, or by fair inference bar recovery by plaintiffs because of their own 'slight negligence.' Iwrey v. Fowler, 367 Mich. 311, 116 N.W.2d 722; Clark v. Grand Trunk Western Railroad Company, 367 Mich. 396, 116 N.W.2d 914; and Mack v. Precast Industries, Inc., 369 Mich. 439, 120 N.W.2d 225. In those cases it was correctly conceded that the law imposed upon the plaintiffs no duty burden greater than ordinary or due care to avoid negligent injury to themselves and, hence, instructions which seemingly inferred the plaintiffs were barred from recovery for slight negligence or, put another way, for failure to exercise great care, were held erroneous. In this case of Frederick, however, while the parties assume that the law imposes upon the defendant a duty more stringent than due care,--a duty to exercise a high degree of care, or the highest degree of care, for the safety of its fare paying passengers,--the law correctly stated requires no more than due care and, therefore, had the challenged instruction imposed a duty burden greater than due care, we would be obliged to strike it down consistent with our holdings in Iwrey, Clark and Mack.

Each of the last three cases relied upon by plaintiff, Durfey v. Milligan, Trent v. Pontiac Transportation Co., Inc., and Bordner v. McKernan, all cited above, relies upon the first of plaintiff's cited cases, DeJager v. Andringa, for the stated rule of law that a common carrier has the duty to exercise a high degree of care for the protection of passengers. DeJager, in turn, relies upon King v. Neller, 228 Mich. 15, 199 N.W. 674, for the same proposition but, qualifies it (as do Trent and Bordner) by explaining that such duty to exercise a high degree of care means care proportionate to the 'nature and risk of the undertaking in view of the nature of the means of conveyance employed,' quoting 10 C.J., p. 855. In further elaboration and quoting again from the cited text authority, the Court in DeJager explained that negligence in that context is 'simply the failure to use the amount of care, skill, and diligence required by the nature of the undertaking and the circumstances of the case.' By its qualification and explanation of the term 'high degree of care,' the Court disclosed that it was testing defendant bus operator's conduct by the classic common law of negligence standard of reasonable care appropriate to the circumstances of the case, a standard of negligence which allows the fact finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care. Viewed in this light, there can be no quarrel with DeJager's statement of the law as theretofore it had been authoritatively pronounced, as we shall soon note, although (it must be conceded) it has been frequently misapplied, as it was in Durfey.

A fact of consequence not to be overlooked is that in neither DeJager, Durfey, Trent nor Bordner did this Court approve a jury instruction that a common carrier's negligence is to be determined by a standard different from that of reasonable care. In DeJager and Trent, the Court reviewed granted motions for directed verdict; in Durfey, it reviewed a case tried to the court without a jury; and in Bordner, it tested a jury's verdict against a great weight challenge. What the Court said in the procedural context of those appeals may not be adopted uncritically for purposes of jury instruction. And perhaps therein, lies the reason for the confusion which undeniably exists in our reported decisions involving consideration of the duty burden borne by common carriers of passengers for hire. What an appellate court says in determining on review whether a trial record discloses factual compliance with the duty of reasonable care appropriately may be cast in terms of positive, comparative, or even superlative degrees, for then its task, as fact...