Gapske v. Hatch

• Decision Date: 28 February 1957
• Docket Number: No. 1,1
• Parties: Gerald H. GAPSKE, Plaintiff and Appellee, v. Richard R. HATCH, d/b/a The Hatch Cab Company, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 337

81 N.W.2d 337

347 Mich. 648

Gerald H. GAPSKE, Plaintiff and Appellee, v. Richard R. HATCH, d/b/a The Hatch Cab Company, Defendant and Appellant.

No. 1.

Supreme Court of Michigan.

Feb. 28, 1957.

Donald M. Habermehl, Alpena, for defendant and appellant.

Isadore Isackson, Alpena, for plaintiff and appellee.

Before the Entire Bench.

EDWARDS, Justice.

This case was tried before a jury with the result of a judgment for the plaintiff in the sume of $6,500.

The accident which produced this litigation occurred on May 27, 1953, at about 2:00 a. m., in the city of Alpena, Michigan.

Plaintiff and a friend had spent the late evening working on copy for a bowling program which was to be printed at plaintiff's small print shop. Their labors had been lightened for both by several bottles of beer, but there is no testimony in this record which indicates that plaintiff was under the influence of liquor at the time of the accident. At approximately 2:00 a. m. plaintiff started from the door of his print shop, walking north on North Second Avenue toward the apartment where he lived, when, according to his testimony, he recalled that he had left his car parked at the curb in front of the print shop rather than in the parking lot which he asserts to have been his usual custom.

Plaintiff testified he turned around, walked back toward his automobile, looked as he got to the curb and saw nothing, walked across in front of his car with the intention of entering from the driver's door which was toward the street side. Plaintiff's testimony carries him to some ill-defined point in the general vicinity of the front lefthand fender of his automobile and stops there, since he asserts that he remembers nothing else until he subsequently recovered consciousness after the accident.

There is no medical testimony in this record pertaining to plaintiff's claimed loss of memory and (presumably for that reason) no presumption of due care is urged. Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536; Breker v. Rosema, 301 Mich. 685, 4 N.W.2d 57, 141 A.L.R. 867.

No one saw the impact of the taxi with this pedestrian, including the participants therein. To ascertain what defendant was doing we must turn to his testimony. He testified, when called for cross-examination under the statute, that he was en route to pick up a passenger in his cab, that he was traveling north on North Second Avenue at a speed of from 20 to 25 miles an hour, and that he had his 'dims' on. He saw plaintiff's car from several hundred feet back, that he passed it at a distance of 4 feet out in the street, that as he was passing it he heard a thud and immediately brought his car to a stop, whereupon he for the first time saw the plaintiff lying near the curb in front of his own car where the impact had apparently thrown him.

The defendant's car was damaged in the area of the right front fender. The right front headlight and the right-hand side of the windshield were broken.

Testimony of eyewitnesses after the event and photographic exhibits introduced at trial indicated that there were some 'shiny marks' on the left front fender of the plaintiff's car as it stood parked at the curb, such marks being visible in the photographic exhibit taken on the night in question at the bottom rear portion of the left front fender and on top of said fender.

The photographic exhibits taken on the night in question demonstrated skid marks on the pavement. Those shown plainly in exhibit 2 would serve to support defendant's testimony that he was driving approximately 3 feet in the street from the white line marking off the parking area (and 4 feet from plaintiff's parked car), except for the fact that no witness conclusively tied these skid marks to the defendant's automobile, or traced them back to their point of origin or the point of impact.

Another bit of circumstantial evidence which was the subject of much comment in oral argument and in the briefs was represented by the introduction in evidence, over defendant's objection, of a jacket which plaintiff testified he was wearing on the night of the accident. It appears that when this jacket was introduced at the time of trial, on the right side thereof there was a 'circular mark.' Plaintiff testified in relation to this that the mark in question had not been there prior to the accident and, over objection, continued:

'This jacket was shown to me, and I noticed that immediately, and I only blamed it to that fact, that is where I got hit.'

The plaintiff's principal injuries were multiple fractures of his right leg, which required 2 operations and the wearing of crutches for about 8 months. There was medical testimony that plaintiff would suffer some discomfort into the future when he stood for a long period of time which his occupation as a printer required.

After plaintiff rested defendant did likewise, offering no additional proofs.

The case was submitted to the jury with 2 special questions:

'1. Do you find that the defendant, Richard Hatch, was negligent in the operation of his automobile?

'2. Do you find that the plaintiff Gerald Gapske was entirely free from any negligence that contributed to this accident?'

In addition to the verdict of $6,500 referred to above, the jury returned affirmative answers to these 2 questions.

Defendant's appeal to this Court is based on the trial judge's refusal to direct a verdict, his denial of a motion for a judgment non obstante veredicto, and his denial of a motion for a new trial.

In considering the first 2 of these motions on appeal, we consider the evidence from the point of view most favorable to the party which prevailed before the jury below. Canning v. Cunningham, 322 Mich. 182, 33 N.W.2d 752; Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97, 19 A.L.R.2d 333; Miller v. Pillow, 337 Mich. 262, 59 N.W.2d 283.

Defendant argued strenuously before the trial court and here that there were no facts from which the jury could have found negligence on the part of defendant which was the proximate cause of plaintiff's injuries, or freedom from contributory negligence on the part of plaintiff. The record recited above is ample justification that there is no direct evidence from which such conclusions could have been drawn. Our question then becomes whether or not there was evidence from which the jury might fairly have inferred plaintiff's freedom from negligence which contributed as a proximate cause to the happening of the accident, and negligence on the part of the defendant which was a proximate cause.

Plaintiff's theory of the happening of this accident as argued before the trial court and here was that this accident occurred after plaintiff had stepped from the curb, walked in front of his parked automobile, walked in front of his parked automobile, and turned to face and open it. Under this theory, plaintiff had been in the vicinity of his own car door an appreciable period of time and plainly visible to defendant when defendant, failing to keep a proper lookout and avoid what was there, ran him down.

Defendant's theory of the accident is quite contrary. Under it, he, the defendant, was proceeding north on North Second Avenue at a legal rate of speed, in his proper lane, and passing plaintiff's automobile at a reasonable distance out in the street, when plaintiff suddenly and unexpectedly appeared from a position in front of his own car where he had been obscured from view and came directly into the path of defendant's vehicle without defendant having even so much as the opportunity to see him before the impact.

The crucial question obviously becomes whether the point of impact was in the immediate vicinity of the plaintiff's car door and the white line indicating the parking area as contended by the plaintiff, or whether the point of impact was at least 3 feet farther out in the street and in a general line with the front of plaintiff's automobile as contended by the defendant.

Considering the testimony from the point of view favorable to the plaintiff as indicated above, these facts are in the record:

Plaintiff's injuries were multiple fractures of his right leg. There was a mark on the right side of the jacket worn on the night in question which was not there before the accident. There were shiny marks on the bottom and top of the left front fender of plaintiff's car immediately ahead of his left door, which appeared to a witness to be fresh. After the accident plaintiff was observed lying 'close to the east curb and about 6 to 8 feet from the front of his parked car.' If we add to the above the facts that when defendant was called under the statute he testified that he never saw plaintiff at all until after the accident, that he was 'just about opposite the car' when he heard the 'thud,' and that at the time of the accident he 'more than likely' had his 'dims' on, we have a summary of all of the relevant facts from which the jury could have inferred answers to the special questions submitted.

It is well-established law in Michigan that negligence may be inferred from circumstantial evidence as well as from direct proofs; and that, on defendant's appeal from a denied motion for a directed verdict, those legitimate inferences which most favor the plaintiff must be accepted. Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728; Cebulak v. Lewis, 320 Mich. 710, 32 N.W.2d 21, 5 A.L.R.2d 186; Spiers v. Martin, 336 Mich. 613, 58 N.W.2d 821; Kaminski v. Grand Trunk Western Railroad Co., 347 Mich. 417, 79 N.W.2d 899.

We give little weight in our determination of this question to the circular mark and to the fact that plaintiff's injuries were to his right leg. No testimony was even attempted relating the circular mark to defendant's headlight, and plaintiff's quoted testimony on this point is patently an inadmissible conclusion. Nor was any effort made to examine the...