Gleason v. Hanafin

• Court: Michigan Supreme Court
• Writing for the Court: BOYLES
• Citation: Gleason v. Hanafin, 308 Mich. 31, 13 N.W.2d 196 (Mich. 1944)
• Decision Date: 24 February 1944
• Docket Number: No. 60.,60.
• Parties: GLEASON v. HANAFIN et ux.

308 Mich. 31

13 N.W.2d 196

GLEASON

v.HANAFIN et ux.

No. 60.

Supreme Court of Michigan.

Feb. 24, 1944.

Personal injury action by Marie Gleason against John Hanafin and wife. The jury returned a verdict for plaintiff. From a judgment for defendants notwithstanding the verdict, plaintiff appeals, and defendants cross-appeal.

Reversed and remanded for entry of judgment on the verdict.Appeal from Circuit Court, Saginaw County; James E. O'Neill, judge.

Before the Entire Bench.

Monaghan, Clark, Kellogg & McGuirk, of Detroit and Henry E. Naegely, Jr., and Crane & Crane, all of Saginaw, for appellant and cross-appellee.

Heilman & Purcell, of Saginaw (Arthur J. Kinnane, of Bay City, of counsel), for defendants, appellees and cross-appellants.

BOYLES, Justice.

This is suit for damages on account of injuries received by plaintiff in a collision between an automobile in which she was a passenger and one owned by defendant John Hanafin, driven by his wife, Marie Hanafin, with his consent. At the close of plaintiff's case and again at the close of all the proofs the defendants moved for a directed verdict, decision on which was reserved by the court, the case submitted to the jury, and plaintiff had verdict for $12,000. Defendants then moved for judgment non obstante veredicto, which was granted. From the judgment for defendants entered thereon plaintiff appeals. Defendants cross-appeal on certain grounds which will be considered later in a separate division of this opinion.

In considering plaintiff's appeal from the judgment entered for defendants non obstante veredicto, there are two questions before us, (1) viewing the testimony in the light most favorable to plaintiff, was there an issue to be submitted to the jury as to whether defendants were guilty of negligence, and, if so, whether it was the proximate cause of the injury; and (2) did the court err in entering judgment for defendants notwithstanding the verdict because of the jury's answers to certain special questions.

The accident occurred on highway US 23 about a mile and three-quarters south of Pinconning, on June 15, 1941, at about 5:00 P. M. It was a clear day, the pavement was dry, US-23 at this place was a straight, level, three-lane concrete highway with adjoining shoulders of gravel from six to ten feet wide, all being in a good condition. It had rained on the week end prior to the accident. At the time of the accident the pavement was dry, but the shoulders were damp. Plaintiff, her husband, and son Jackie, had gone from Detroit on a week-end fishing trip with a friend, Herman J. LeBlanc, using his automobile for the trip. On the day of the accident the party started back south from East Tawas for Detroit, with Mr. LeBlanc driving the car, and had reached a place about a mile and three-quarters south of Pinconning between 4:30 and 5:00 o'clock in the afternoon. Southbound traffic was heavy, using both the west and center lanes of the highway. There were few automobiles going north in the east lane. Mr. LeBlanc was driving in the west lane, proceeding south in a line of traffic at approximately 40 miles an hour. A third car, being driven in the center lane in a southerly direction, ahead of LeBlanc, was observed to pass another car likewise in the center lane proceeding south, by going out into the east lane at a distance of approximately 250 to 300 feet southerly from the LeBlanc car. At about this same time defendants' automobile was being driven northward by the defendant Marie Hanafin in the east lane of the highway at the rate of from 60 to 70 miles per hour (plaintiff's testimony). There was a conflict of testimony as to whether this third automobile, when it invaded the east lane (in which defendants' automobile was traveling), sideswiped defendants' automobile in passing, or whether this third automobile had successfully turned back into the center lane before the defendants' automobile reached it. Plaintiff claims that defendant Marie Hanafin failed to use that degree of care and caution required of a reasonably prudent person under the circumstances, drove at an excessive rate of speed, crossed the three-lane highway 150 feet to collide with plaintiff's car in its own lane of traffic. The defendants claim that the proximate cause of the accident was the third car coming into their lane of traffic.

Where the third automobile was driven into the east lane, defendants' automobile was approaching it in the east lane from the opposite direction at a high rate of speed. They succeeded in passing and continued on in their own general direction, the third automobile southward and defendants continued north or northwest about 150 feet before colliding with plaintiff's car in the west lane. The passing occurred about 250 feet ahead of LeBlanc's automobile as it was going south in the west lane. When LeBlanc first saw defendants' automobile it was about 150 feet ahead, partly in the east lane, with two wheels off the pavement on the shoulder, approching at a high rate of speed. It crossed the pavement from the east lane to the west lane and struck the automobile in which plaintiff was riding while it was in its own lane of traffic. Defendant Marie Hanafin testified she did not at any time apply brakes to the car, did not remember how she crossed the center lane to collide with plaintiff's car in the west lane. There is no explanation why she could not or did not continue north in the east lane, thus avoiding the accident, except her claim that she became unconscious. There is no claim that LeBlanc could have prevented the accident. There was a conflict of testimony as to the distance traveled by defendants' automobile, as to how much time elapsed after LeBlanc saw the third car go into the east lane before defendants' car appeared partly in the east lane and partly on the shoulder, and as to whether a could of dust was raised obstructing defendants' view. Plaintiff's testimony as to the elapsed time would tend to establish that the third car had time to get back into the center lane before the defendants' car reached the place. Defendants' testimony would indicate that a cloud of dust was raised in a collision between the third automobile and that of the defendants. Plaintiff's testimony was to the effect that the gravel shoulder was moist and that there was no dust. Defendants claim that the proximate cause of the accident was a collision with the third automobile coming into the east lane of traffic. Plaintiff claims that defendants' automobile was operated negligently at an excessive rate of speed, without due regard for condition of traffic, that defendants failed to use the brakes, failed to have their car under control and to use due care in its operation.

There was testimony to go to the jury as to whether defendants were guilty of negligence in the operation of their vehicle, and as to the proximate cause of the accident. Savas v. Beals, 304 Mich. 84, 7 N.W.2d 231. While the driver of the third car was probably guilty of negligence if he knowingly drove into the east lane, where he had no right to be, in front of defendants' rapidly approaching car, his negligence was not encessarily the sole proximate cause of the accident.

There may be two contributing causes of an injury. Welch v. Jackson & Battle Creek Traction Co., 154 Mich. 399, 117 N.W. 898. Where injury results from concurrent negligence of two or more persons, each proximately contributing to the result, recovery may be had against one or more. Banzhof v. Roche, 228 Mich. 36, 199 N.W. 607. It is not essential to recovery that defendants' negligence be the sole cause of plaintiff's injury. Camp v. Wilson, 258 Mich. 38, 241 N.W. 844. There may be two proximate causes of an accident. Fitzcharles v. Mayer, 284 Mich. 122, 278 N.W. 788;Bordner v. McKernan, 294 Mich. 411, 293 N.W. 889;Wallace v. Kramer, 296 Mich. 680, 296 N.W. 838. In Barkman v. Montague, 297 Mich. 538, 298 N.W. 273, 274, this court approved this rule of law as follows:

‘In Carr v. St. Louis Auto Supply Co., 293 Mo. 562 [569],239 S.W. 827, 829, a suit for personal injury, occasioned by an automobile accident, the court adopted the well-established rule stated in 1 Shearman & Redfield on Negligence, 6th Ed., § 122, as follows:

“‘Concurrent, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs, or co-operates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.’”

The court was in error in entering judgment for the defendants notwithstanding the verdict on the ground that there was no issue of fact for the jury as to defendants' negligence or as to whether it was the proximate cause of the accident. We then reach the question whether the jury's answers to special questions submitted to the jury were inconsistent with and contrary to the general verdict for plaintiff, requiring entry of judgment for defendants non obstante veredicto. These questions and answers were as follows:

‘1. Was there a collision between the so-called ‘third car’ and the Hanafin car before the...