Kirby v. Larson

• Decision Date: 01 January 1976
• Docket Number: No. 5,5
• Citation: 400 Mich. 585,256 N.W.2d 400
• Parties: Kathryn Ann KIRBY, Robert J. Kirby, and Christine Ann Kirby, Plaintiffs- Appellants, v. Ellis Lloyd LARSON, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 400

256 N.W.2d 400

Kathryn Ann KIRBY, Robert J. Kirby, and Christine Ann Kirby, Plaintiffs- Appellants, v. Ellis Lloyd LARSON, Defendant-Appellee.

No. 5, Jan. Term, 1976.

400 Mich. 585, 256 N.W.2d 400

Supreme Court of Michigan.

July 18, 1977.

Newman & Mackay by William L. Mackay, Lansing, for plaintiffs-appellants.

Willingham, Cote, Hanslovsky, Griffith & Foresman, P. C., by John L. Cote East Lansing, for defendant-appellee.

WILLIAMS, Justice.

This case involves an automobile accident in which the negligence, if any, of plaintiff was arguably slight compared with that of defendant. Despite this small dereliction, however, the all-or-nothing doctrine of contributory negligence was applied below, and plaintiff was denied any recovery.

This unfortunate result raises once again, as in Vanderah v. Olah,387 Mich. 643, 199 N.W.2d 449 (1972), the question of whether a more equitable approach to the problem of the negligent plaintiff and the negligent defendant might be in the apportionment of damages commensurate with the degree of fault. This concept underlies the doctrine of comparative negligence, and, in the interest of justice, it is the doctrine we adopt today.

We hold therefore that the doctrine of contributory negligence is replaced in this jurisdiction by comparative negligence, and will be applied to all cases filed after the date of this opinion.

As to the case before us, we find that remand to the circuit court for retrial is necessary because of confusing and erroneous jury instructions on the question of proximate cause. Therefore, if the matter arises, comparative negligence shall be applied to this case at retrial.

I FACTS

An automobile accident at the intersection of Hill and Main Streets in Ann Arbor on August 16, 1971 precipitated this negligence action.

Plaintiff Christine Kirby, then a high school student, was a passenger in a small MG automobile owned by her mother and driven by her friend Deborah Cooper. The MG proceeded south on Main and stopped under an overhead traffic light at the intersection of Hill and Main. The light was green at the time, and Cooper was signaling for a left turn.

A two-ton Buick driven by defendant Ellis Larson proceeded north on Main Street in the inside lane. Another vehicle, in which witness Robert Wright was a passenger, was traveling in the curbside lane in the same direction as Larson. Wright testified that his car stopped at the intersection because the traffic signal was turning amber.

Cooper and Kirby saw the Wright vehicle stop. They both saw defendant's car about three or four lengths back from the intersection and anticipated that it, too, would stop. Cooper began to complete her left turn. Defendant's vehicle, however, traveling at 25-30 miles per hour, went past Wright's stopped car, and proceeded into the intersection at the same time as the Cooper vehicle was going through it.

The Buick struck the MG in the right rear, causing the car to spin around 180 degrees. Christine Kirby was flung over the hood of the car, landing on her face and suffering a back sprain, dislocated knees, severe facial lacerations and the loss of four front teeth with the possibility of loss of other teeth in the future.

Cooper testified she was halfway through the intersection when she was struck.

Defendant testified that he did not see the light change from green to any other color, and that he did not observe any movement on the part of the MG until he approached the intersection. He did say, however, that the light had turned yellow before he got to the white line at the intersection.

Although the police officer at the scene testified he could not identify skid marks from defendant's vehicle, defendant testified he did point out the marks indicating he had tried to stop. He also said he told the police officers the accident was not his fault because he felt he could have made it through the yellow light. However, a summons was issued to defendant for violation of the caution signal, pursuant to Ann Arbor ordinances, § 10.26. No summons was issued to Cooper.

The court held that evidence of the traffic summons was inadmissible. It did, however, permit evidence of past traffic convictions to reach the jury, but after receiving this favorable ruling, defense counsel never presented testimony on this issue.

Defendant contended that plaintiff Kirby had urged Cooper to make the turn when she did. ¹ Plaintiff presented two apparently different versions of what actually happened. At trial, she insisted that she said nothing until after Cooper was already cranking the wheel to turn. Her testimony at the deposition, however, was that she told Cooper to turn before the turn had begun. She felt there was no contradiction, because she said she urged her friend to Relevant to the issues before this Court, the jury was instructed that the verdict should be for the plaintiff if she was injured, if defendant was negligent, and if such negligence was the proximate cause of her injuries, unless plaintiff herself was negligent and such negligence proximately contributed to her injuries. They were instructed that if they found that defendant violated an Ann Arbor ordinance regulating vehicular traffic, such violation would be evidence of negligence. ² The jury was also instructed on the same standard of care should they find that plaintiff violated a traffic ordinance. ³

turn because it was a crowded intersection, they were blocking traffic and she saw defendant was not stopping.

The jury was instructed to disregard anything relative to the issuance of a traffic summons or ticket, and was instructed as follows on the possibility of plaintiff's contributory negligence:

"I further instruct you the jury while any negligence by the operator of the Plaintiff vehicle, Debra (sic ) Cooper is not to be imputed to her passenger, the Plaintiff, Christine Kirby even though a passenger can be guilty of negligence in her own right in the operation of the vehicle in which she is riding; and if you find that Debra (sic ) Cooper acted solely or primarily on the basis of what the passenger Christine Kirby said and that passenger Christine Kirby was aware or should have been aware of the existing dangerous situation then if you find that Christine Kirby was personally and contributorily negligent and such negligence was a proximate cause of the injury and damages alleged by her and in that event Christine Kirby cannot recover from the Defendant and your verdict therefore would be for the Defendant." (110a-111a)

Following completion of the instructions, and prior to giving counsel an opportunity to state objections to the instructions, the jury was ordered to begin deliberations.

Plaintiff's counsel objected to that procedure, and to the injection of contributory negligence into the case, claiming that the negligence of the driver could not be imputed to a passenger. Further, he argued, his client could not be negligent on her own because she had no right of control of the automobile and she did not interfere with the driver in any way.

He also objected to the court's instructing that the jury was to determine whether the negligence of the defendant was the proximate cause of plaintiff's injuries. The proper statement of law, he maintained, was that defendant's negligence must be a proximate cause.

He also objected to the instruction ordering the jury not to consider the issuance of a traffic ticket, noting that defendant brought that out himself on direct. ⁴ All objections were denied.

After the jury began deliberating, they asked the court for additional help:

"THE COURT: This is a continuation of Chris Kirby against Larson. I have two requested questions from the jury One, if the driver of Plaintiff's car was proximate ⁵ cause of the accident, but Defendant was also negligent, would jury be required to find for the Defendant?

"I can't answer that question. There are answers in the instructions I have given you. On the city ordinances and State law, I have given them twice so you have to do the best you can on the instructions that I have given you."

The jury also asked for a definition of "preponderance, that is when one side greatly outweighs the other". (129a)

The jury found for defendant. The Court of Appeals affirmed, in a brief memorandum opinion citing the "harmless error rule", GCR 1963, 529.1. ⁶ We granted leave to appeal December 23, 1974. 393 Mich. 772.

II ADMISSIBILITY OF EVIDENCE OF A TRAFFIC TICKET

The trial court refused to admit, over objection by plaintiffs, evidence of (68a) and closing argument (111a) about issuance of a traffic summons by the officer on the scene to defendant for disregarding a caution signal. The trail judge also excluded evidence of the bench trial conviction on the ticket because it "would not be material to this case." However, citing Sting v. Davis, 384 Mich. 608, 185 N.W.2d 360 (1971), the judge permitted cross-examination on other traffic convictions. (67a-68a)

M.C.L.A. § 257.731; M.S.A. § 9.2431 requires:

"No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action."

GCR 1963, 607, however, provides:

"During the trial of civil actions the rules of evidence approved in Van Goosen v. Barlum, 214 Mich. 595, (183 N.W. 8); Zimmerman v. Goldberg, 277 Mich. 134, (268 N.W. 837); Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, (21 N.W.2d 841); Cebulak v. Lewis, 320 Mich. 710, (32 N.W.2d 21), and re-enacted by PA 1961, No. 236, § 600.2158, shall prevail, anything in section 731 of the Michigan Vehicle Code (CLS 1961, § 257.731) to the contrary notwithstanding. (Added Feb. 2, 1965.)"

Zimmerman v. Goldberg permitted defendant's guilty plea to be used as substantive evidence in a subsequent negligence trial based on the same accident. Socony Vacuum Oil Co. v. Marvin and Cebulak v. Lewis permitted...