Landon v. Shepherd, 60
| Decision Date | 09 September 1958 |
| Docket Number | No. 60,J,60 |
| Citation | 91 N.W.2d 844,353 Mich. 500 |
| Parties | Morley E. LANDON, Plaintiff and Appellant, v. George H. SHEPHERD, Defendant and Appellee. une Term. |
| Court | Michigan Supreme Court |
Blackney & Cameron, Flint, for plaintiff and appellant.
Chester R. Schwesinger, Flint, for defendant and appellee.
Before the Entire Bench.
Plaintiff, a resident of the township of Flint, Genesee county, Michigan, brought an action in the circuit court for that county to recover for personal injuries received by him on July 31, 1954, while standing at the left side of his Chevrolet automobile, which was parked in a regularly provided parking space on the east side of Harrison street, a public highway in the city of Flint, said parking space being directly north of the intersection of said Harrison street with east Second street.
It is alleged that as plaintiff was standing on the left side of his automobile, closing the window in the left door thereof, defendant carelessly and negligently, and without due observation, attempted to back his automobile into the parking space already occupied by plaintiff's automobile, and, in doing so, the automobile of defendant struck the door of plaintiff's automobile, catching plaintiff's hand between the door and doorpost thereof, painfully injuring plaintiff, and damaging plaintiff's automobile. Plaintiff alleges that this negligence of defendant was the proximate cause of the accident and that plaintiff was free from any contributory negligence.*
The testimony of plaintiff was to the extent that he saw an automobile back out of a parking space in front of the Detroit and Northern Savings & Loan Association, and when the automobile had backed out he pulled in; that it was the first parking space north of the corner on the east side of Hrrison street; that approximately 15 feet ahead of him was defendant's double parked automobile, roughly from 3 to 4 feet from the automobiles that were parked along the curb and parallel to the parked cars; that defendant's car was just standing there when plaintiff pulled into the parking space; that plaintiff's wife got out of the automobile on the curb side and he got out on the street side; that he had his door partly open, and had reached inside to roll the glass up when defendant backed his automobile into the door of plaintiff's automobile. Plaintiff further testified that defendant was backing at the rate of approximately 3 to 5 miles per hour; that he did not observe the car backing up until his wife, who was standing on the curb on the opposite side, shouted 'look out'; that he looked up at that moment and defendant's car was right on him. Testimony of plaintiff's wife was substantially the same.
Defendant testified that he had taken his wife downtown shopping on this Saturday morning and had let his wife out on Harrison street just south of the intersection where the accident occurred, and drove across the intersection waiting for this parking space. He observed that a lady in an automobile was backing out of a parking space so he drove by her in order to back into the parking space. He testified that he could not stop behind her because he would have blocked traffic on the other cross street. He pulled a car length beyond her so that she would have enough room to get out, and about 2 feet in front of him, when he came to a stop waiting for the lady to leave the parking space, was a postal truck. He testified further that the lady backed out and went north on Harrison street past him; that plaintiff's automobile pulled immediately into the parking space she had vacated; that he saw he couldn't go forward any more because of the postal truck; that he gestured to plaintiff that he was waiting for the parking space; that he then looked in his automobile mirror and plaintiff was not in sight; that he looked to his left to see if there was any moving traffic going north, and then backed up, and, in so doing, backed into the door of plaintiff's automobile. He testified that he did not see plaintiff get out of the automobile.
The case was submitted to a jury, and the jury returned a verdict of no cause for action. Plaintiff then filed a motion for new trial, which the trial court denied.
Plaintiff appeals to this Court, contending 4 things: (1) The question of contributory negligence was not properly presented to the jury as an issue of fact in absence of dispute of facts. (2) The verdict of the jury was against the preponderance of the evidence. (3) The trial court erred in refusing to instruct the jury as requested by plaintiff. (4) The trial court erred in denying plaintiff's motion for a new trial.
Plaintiff, in arguing that the question of contributory negligence was not properly presented to the jury as an issue of fact in absence of dispute of facts, relies upon several cases, all of which are distinguishable from the instant case.
Jenkins v. Bentley, 277 Mich. 81, 268 N.W. 819, was an action brought for injuries to an 11-year old boy, who, when injured, was leaning against a tree located 27 inches from the curb of the street. The accident happened while the driver of the truck, when turning around in the street, had backed part way, stopped, cramped his front wheels as if to proceed forward, and then suddenly, with a jerk, backed against the boy. Here the boy had no legal obligation to anticipate that defendants' driver would suddenly back the rear of the truck over the curb.
In the Jenkins case the case was tried before a court without a jury. The Court there clearly held as a matter of fact, not of law, that the plaintiff was not guilty of contributory negligence.
In the case of Kinsler v. Simpson, 257 Mich. 7, 240 N.W. 98, relied upon by plaintiff, the contention was that there was no negligence established for which defendants were responsible. The Court held that there was evidence from which the trial judge could, as a matter of fact, not law, find defendants negligent.
The third case relied upon by plaintiff is that of Roach v. Petrequin, 234 Mich. 551, 208 N.W. 695. Plaintiff in that case, Margaret Roach, brought the action by her next friend. She was a 4-year-old child. No question of contributory negligence was involved.
Plaintiff further relies upon Marth v. Lambert, 290 Mich. 557, 287 N.W. 916, 918, stressing three quotations therefrom. The first from 5-6 Huddy, Law of Automobiles (5th ed.), § 417, pp. 593, 594, as follows:
(See 5-6 Huddy, Encyclopedia of Automobile Law [9th ed.], § 79, pp. 132, 133.)
The second, a quote by Justice Edward M. Sharpe from Tio v. Molter, 262 Mich. 655, 247 N.W. 772, as follows:
'Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, * * *.'
The third, a further quote by Justice Sharpe from Pearce v. Rodell, 283 Mich. 19, 34, 276 N.W. 883, 889, as follows:
'A pedestrian has a right to rely upon the presumption the driver of an automobile will exercise due care and is not, as a matter of law, required to look back for approaching vehicles.'
The above quotations were in support of the contention of Justice Sharpe that after plaintiff alighted from his car to examine the gasoline tank, he then stood in the same relationship to traffic as any other pedestrian. These quotations were not in support of a position that in so doing such an individual had no obligation to exercise reasonable case under the particular circumstances.
In the case to Tio v. Molter, supra, 262 Mich. at page 661, 247 N.W. at page 774, Justice North said:
'Assuming that plaintiff was walking in an easterly direction upon the southerly part of the paved portion...
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