Heiman v. Kolle

• Decision Date: 17 April 1947
• Docket Number: No. 29.,29.
• Citation: 27 N.W.2d 92,317 Mich. 548
• Parties: HEIMAN v. KOLLE.
• Court: Michigan Supreme Court

317 Mich. 548

27 N.W.2d 92

HEIMAN

v.KOLLE.

No. 29.

Supreme Court of Michigan.

April 17, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.

Action by Ernest J. Heiman against Otto F. Kolle to recover for injuries sustained by plaintiff when struck by defendant's automobile. From an adverse judgment, the defendant appeals.

Judgment reversed and cause remanded for a new trial.

Before the Entire Bench.

Mahlon J. MacGregor, of Detroit, for plaintiff and appellee.

Edward N. Barnard, of Detroit, for defendant and appellant.

SHARPE, Justice.

This is an action for damages brought by plaintiff for an injury received as a result of colliding with an automobile.

Plaintiff claims that on January 4, 1944, at about the hour of 7 p. m., he stood on the southwest corner of Second street and West Grand Boulevard in the city of Detroit; that he intended to cross the boulevard to the north; that on the south side of West Grand Boulevard there are four traffic lanes for traffic going east, each lane is about 10 feet in width; that on this occasion there was traffic in the first three lanes from the south; that he left the curb when he saw that the traffic light was green; that as he was entering the fourth lane of traffic, the traffic light turned red; that when he was in or near the third lane of traffic he saw lights on an automobile in the fourth lane of traffic; that the cars were all stopped as he passed the first three lanes of traffic; that while crossing the fourth lane of traffic he was hit by defendant's car; that he was taken to Ford Hospital; and that his left leg and left side were severely injured.

It is the claim of defendant, Otto F. Kolle, that he was driving his car east on West Grand Boulevard at about the hour of 7:15; that he stopped his car at the intersection of Second street; that there was a space of three and half feet between his car and the car in the third lane of traffic; that he waited 30 seconds for the light to turn green for east bound traffic; that when he started his car, the car to the right of him was in motion; that before he started his car he made an observation by looking to the right in the direction of the curb, but saw no pedestrians in the pedestrian lane; that as he started his car plaintiff ran around the front of the car to the right of defendant and threw himself on the front of defendant's car; and that he thereupon applied his brakes and the car behind him struck the back end of his car, pushed his car ahead one and a half feet throwing plaintiff onto the street.

The cause came on for trial and at the close of plaintiff's testimony defendant made a motion for a directed verdict in favor of defendant for the reasons that plaintiff failed to prove that defendant was guilty of any negligence causing the injuries of which he complains; and because plaintiff was guilty of contributory negligence.

The trial court denied the motion for the following reasons:

‘On the testimony as it stands, were the case to be closed now, I would direct the jury that as a matter of law, the defendant is guilty of negligence, and plaintiff is free from contributory negligence.

‘Plaintiff entered the crosswalk with the green light, as he had a perfect right to do. After he entered that crosswalk and had gotten approximately three-quarters of the way across, the light changed so that he was no longer protected by a green light. However, at that point he had a right to continue reasonably to get to the opposite curb and a place of safety. He did not have right to dwaddle. He did not have to run. And while he was seeking that place of safety in a reasonable way, it was the duty of cars which had been stopped on his left, waiting the change of lights so they could go in an easterly direction, not to interfere with him until he got out of the place of danger and to a place of safety.

‘Therefore, it was the duty of this defendant, who was either approaching the intersection in the fourth lane, without being stopped, or had been stopped, and was waiting for the light to change, to see this man and to give him a chance to get to the curb.

‘On the testimony as it stands at the present time, the defendant couldn't have helped seeing him if he had been looking for pedestrians in that crosswalk, because his headlights were on and the man when he was struck was in the full glare of the headlights.’

We are in accord with the ruling of the trial court. In Smarinsky v. Markowitz, 265 Mich. 412, 251 N.W. 539, we said:

‘Such invitation to cross and protection while doing so did not cease upon change of light while the pedestrian was in the act of crossing. The change of light did not authorize defendant to continue his course at high speed, regardless of circumstances open to his view.’

Following the refusal of the trial court to grant defendant's motion, defendant submitted evidence in harmony with his claims hereinbefore stated. The cause was submitted to the jury who returned a verdict in favor of plaintiff.

Defendant filed a motion for a new trial which was denied by the trial court for reasons that will be hereinafter discussed. Defendant appeals and urges that the trial courts was in error in permitting plaintiff's witness John Morin, a police officer, to testify as to a statement claimed to have been made to him by defendant contrary to subsection (e) of 1 Comp.Laws 1929, § 4722, as amended by Act No. 318, Pub.Acts 1939, Comp.Laws Supp.1940, § 4722, Stat.Ann.1946 Cum.Supp. § 9.1590, which reads as follows:

‘The driver of every motor vehicle involved in an accident resulting in a vehicle or vehicles becoming so disabled as to be incapable of being propelled in the usual manner, or resulting in personal injury or death of any person shall forthwith report such accident to the nearest or most convenient police station or police officer. The officer receiving such report shall forthwith forward the same to the commissioner of state police on forms to be prescribed by him. Such report shall not be available for use in any court action, but it shall be for the purpose of furnishing statistical informationas to the number and cause of accidents.’

The above officer was attached to the accident prevention bureau of the police department of the city of Detroit. He testified in substance that defendant stated to him that he (defendant) did not stop at Second street, but only shifted to second gear and continued in motion when the lights turned green before he reached Second street.

There was no attempt to introduce his report in evidence. His testimony as to what defendant told him does not contravene the purpose of the above act. In Delfosse v. Bresnahan, 305 Mich. 621, 9 N.W.2d 866, defendant made a report of an accident to the chief of police. We there held that it was proper for the chief of police to testify as to measurements of distances he made on the street at the place where the accident occurred; and that there were red spots, evidently blood, near the place where the accident occurred. It was not the purpose of the act to keep admissions made by defendant from the ears of the court or jury.

See, also, Baumgarten v. Tasco, 312 Mich. 161, 20 N.W.2d 144.

Defendant contends that the trial court unfairly exceeded his privilege of commenting upon the evidence by placing himself in the position of a biased and prejudiced advocate in favor of the plaintiff. The comments complained of are as follows:

‘Now, I am going to comment on the evidence a little bit on that point and I think I shall express an opinion in connection with this claim of the defendant. I call your attention to this point: A judge's charge is binding on the jury when he is telling the jury what the law is. In his charge he has a right to comment on the evidence and express and opinion on the evidence, but his opinion and his comment on the evidence is not binding on the jury, no more than the arguments of counsel are. The members of the jury are at perfect liberty to disregard whatever both of the lawyers on both sides of the case say to them and use their own judgment on the testimony if they see fit, and in the same way even though the trial judge does express an opinion to you or does comment on the evidence you have an equal right to disregard what the judge says if you wish to and substitute your own judgment on the matter for anything that he says. But subject to that limitation a trial judge in jury cases does have the right and is within his power and strictly within his duty if he does comment on the evidence wherever he feels that the interests of justice requires it.

‘Now, personally, I don't think that the accident happened the way the defendant says it did. The reasons why I do not think so are based in part upon some things that are not in the evidence at all. I will call your attention to the fact that under the testimony of the defendant of the rear end collision, and under the defendant's theory, his car was at a stop or almost so with the brakes set and he was hit from the rear with sufficient violence to throw his car violently forward an unascertained distance but probably three or four feet and I call your attention to the fact that there is no testimony in the case of any mark on the rear end of his car of any impact such as that and suggest for your consideration the question: Whether or not if there had been a violent collision such as they have testified to there would not have been some mark of it upon the rear end of the car?

‘Now, as the next point, let me call to your attention that in considering actions in court there are certain things that courts and juries have a right to take into consideration and take judicial notice of. Such, for example, as natural laws. For example, all of us apply unconsciously the rule that if you hold a thing up...