Hendershot v. Kelly

• Decision Date: 24 April 1968
• Docket Number: Docket No. 3334,No. 2,2
• Citation: 160 N.W.2d 740,11 Mich.App. 173
• Parties: Joyce HENDERSHOT, Plaintiff and Appellant, v. Gerald KELLY and James Kelly, Defendants and Appellees
• Court: Court of Appeal of Michigan — District of US

Page 740

160 N.W.2d 740

11 Mich.App. 173

Joyce HENDERSHOT, Plaintiff and Appellant, v. Gerald KELLY and James Kelly, Defendants and Appellees.

Docket No. 3334.

Court of Appeals of Michigan, Division No. 2.

April 24, 1968.

Released for Publication Sept. 9, 1968.

Leave to Appeal Denied June 27, 1968.

Julius M. Grossbart, Leithauser & Grossbart, Detroit, for appellant.

Gerald G. White, Patterson Patterson, Barrett, Whitfield, Manikoff & White, Pontiac, for appellees.

Before QUINN, P.J., and GILLIS and HOLBROOK, JJ.

HOLBROOK, Judge.

Plaintiff, Joyce Hendershot, appeals from a jury verdict and judgment of no cause of action. The facts pertinent to her appeal are:

On Christmas Eve, 1963, about 6:40 p.m., plaintiff was a passenger in an automobile being driven in a northerly direction on John R by Anthony Argento. A parking ticket, which had been given Argento earlier that day, blew out of the driver's window about 2 blocks north of Eleven Mile road in the city of Madison Heights. Argento brought his vehicle to a standstill in the extreme east traffic lane of John R, a 4-lane highway. He then got out, crossed the highway and began looking for the parking ticket. His search took between 5 and 10 minutes, during which time plaintiff remained in the automobile.

Defendant-appellee, Gerald Kelly, was driving his brother's 1957 Ford pickup in the same traffic lane of John R in a northerly direction, when an unidentified Chevrolet which he was following swerved to the left to avoid the Argento vehicle. Gerald Kelly then observed the Argento vehicle. He was unable to change lanes and although he applied his brakes, he could not stop before colliding with the Argento vehicle. Joyce Hendershot claimed damages for personal injuries as a result of the collision.

The Argento vehicle was in a no parking zone, the nearest street light was one-half block north of the accident scene, and the pavement was wet, a light rain falling or having fallen just prior to the accident. Several facts other than these were in dispute: the speed of defendant's vehicle, the distance between defendant's vehicle and the unidentified Chevrolet, the distance between defendant's vehicle and the Argento vehicle after the unidentified Chevrolet swerved to the left, and the force of impact.

Plaintiff's motion for new trial was denied and her appeal raises 5 issues. Restated and considered in proper order they are:

1. Was plaintiff not quilty of contributory negligence as a matter of law?

The trial court denied plaintiff's motion that the jury be directed that plaintiff was not guilty of contributory negligence as a matter of law. The question of whether plaintiff was guilty of contributory negligence as a result of her remaining in the Argento vehicle was left to the jury.

In considering this issue, a general statement of the law is stated in 61 C.J.S. Motor Vehicles § 491, p. 116, as follows:

'If an occupant of a motor vehicle knows, or in the exercise of ordinary care should know, that to remain longer in the vehicle is dangerous, and if under the same or similar circumstances a reasonably prudent person would leave or withdraw from the vehicle, he is guilty of contributory negligence if, a reasonable opportunity therefor being afforded, he fails to do so, and such failure contributes proximately to cause his injury.'

Michigan case law indicates that usually the question is one of fact for the jury under all the evidence.

'On the issue of contributory negligence, we are in accord with the determination of the trial court that this was a jury question. Plaintiff was a stranger in the city. The place where defendant Bentley stopped was in a sparsely settled part of the community. It was after midnight. Whether plaintiff acted as a reasonably prudent person in remaining in the cab under the circumstances was a question of fact.' Bordner v. McKernan (1940), 294 Mich. 411, 413, 293 N.W. 889, 890.

'It is the undoubted rule that the invited passenger is not absolved from the duty to exercise reasonable care for his own safety. Whether he had done so under the circumstances shown and situation in which he is placed usually becomes a question of fact for the jury.' June v. Grand Trunk W.R. Co. (1925), 232 Mich. 449, 456, 205 N.W. 181, 183.

'The question of whether a guest or a passenger in a motor vehicle exercises due care for his own safety is usually a question for the jury under all the evidence. Blashfield's Cyc. of Auto Law, 1109, citing many cases, including Emery v. Ford (1926), 234 Mich. 11, 207 N.W. 856.' Fairchild v. Detroit, G.H. & M.R. Co. (1930), 250 Mich. 252, 259, 260, 230 N.W. 167, 169.

We conclude that under the circumstances present in this case the question was one of fact. The trial court did not err in denying plaintiff's motion.

2. Was plaintiff entitled to a directed verdict as to defendants' negligence?

Plaintiff contends that defendant Gerald Kelly's own testimony, favorably viewed, shows that he was negligent as a matter of law; i.e., traveling at a speed of 20 miles per hour at a distance of 1 1/2 car lengths (approximately 26 feet) behind the unidentified Chevrolet thereby violating as a matter of law C.L.S.1961, § 257.643 (Stat.Ann.1960 Rev. § 9.2343), ¹ and C.L.S.1961, § 257.627, as amended by P.A.1962, No. 120 (Stat.Ann.1965 Cum.Supp. § 9,2327). ² In support of this contention plaintiff cites Lewis v. Yund (1954), 339 Mich. 441, 64 N.W.2d 696; Arndt v. Greyewski (1937), 279 Mich. 224, 271 N.W. 740, and other cases.

Defendants claimed at trial that when the unidentified Chevrolet swerved to the left to avoid the Argento vehicle, Gerald Kelly, without fault on his part, was placed in a position of peril, and the application of the sudden emergency rule excused them from liability.

In Hackley Union National Bank & Trust Company v. Warren Radio Company (1966), 5 Mich.App. 64, 71, 145 N.W.2d 831, this Court, faced with a similar issue, stated:

'Whereas, at one time, the application of the statute (assured clear distance) was strictly construed and applied as evidenced by the rule in the case of Lewis v. Yund (1954), 339 Mich. 441, 64 N.W.2d 696, recent cases indicate that the statute must be reasonably construed and exceptions to the statutory edict have been created to accomplish justice, including bringing the assured clear distance rule to qualification by the test of due or ordinary care, exercised in the light of the attending conditions. Sum Oil Company v. Seamon (1957), 349 Mich. 387, 84 N.W.2d 840; Nass v. Mossner (1961), 363 Mich. 128, 108 N.W.2d 881; Dismukes v. Michigan Express, Inc. (1962), 368 Mich. 197, 118 N.W.2d 238.'

Also, see Hunt v. Deming (1965), 375 Mich. 581, 134 N.W.2d 662 (discussed at length in Hackley Union National Bank &amp Trust Company v. Warren Radio Company, supra, 5 Mich.App., pp. 71, 72, 73, 145 N.W.2d 831); McKinney v. Anderson (1964), 373 Mich. 414, 129 N.W.2d 851; Patzer v. Bowerman-Halifax Funeral Home (1963), 370 Mich. 350, 121 N.W.2d 843; Garrigan v. LaSalle Coca-Cola Bottling Company (1961), 362 Mich. 262, 106 N.W.2d 807.

The assured clear distance rule is now qualified by 'the test of due or ordinary care, exercised in the light of attending conditions.' Hackley Union National Bank & Trust Company v. Warren Radio Company, supra, 5 Mich.App., p. 71, 145 N.W.2d p. 834. The same qualification applies to the rule against following too closely. We find no error in the trial court's refusal to grant plaintiff's motion for a directed verdict as to defendants' negligence.

3. Did the trial court err in instructing the jury regarding vehicle of plaintiff's driver being illegally parked?

The lower court in going over the proposed instructions with counsel asked, 'Is there a dispute here as to whether or not the vehicle in which the plaintiff was riding was illegally parked and therefore in position of negligence insofar as the vehicle is concerned?' Plaintiff's counsel objected to the proposed charge (as to illegal parking) on the ground that it would result in the jury imputing negligence of plaintiff's driver to plaintiff. When given further opportunity to object, after the jury had been instructed, plaintiff made no objection...