Linabery v. La Vasseur, s. 58-59
| Decision Date | 26 February 1960 |
| Docket Number | Nos. 58-59,s. 58-59 |
| Citation | 359 Mich. 122,101 N.W.2d 388 |
| Parties | Ray LINABERY, Plaintiff and Appellant, v. Earl LA VASSEUR and Roy La Vasseur, Defendants and Appellees. Frances LINABERY, Plaintiff and Appellant, v. Earl LA VASSEUR and Roy La Vasseur, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Leitson & Dean, Flint, for plaintiffs and appellants.
Milliken & Magee, Flint, for defendants and appellees.
Before the Entire Bench.
Plaintiffs in these two cases are husband and wife. Suit is for costs of automobile repairs and for damages resulting from the wife's personal injuries caused by one of the defendants driving a tractor-trailer, owned by the other, into the rear of the automobile owned by the husband and then being operated by the wife, hereinafter called the plaintiff. The two cases were consolidated for trial as they are on appeal here. Plaintiffs appeal from a jury verdict of no cause for action and denial of their motions for new trial.
The plaintiff was driving the automobile, at a rate of speed of 35 miles per hour, in the lane next to the center line of a fourlane city street, along the left side of a bus travelling in the same direction. The tractor-trailer was following the bus, in the outer lane, at about 25 miles per hour. The but slowed down, whereupon defendant driver turned into the center lane behind the plaintiff, and accelerated to pass the bus. Plaintiff testified that when the bus slowed down, she did so also, applying the brake and reducing her speed from 35 to about 15 or 20 miles per hour. Defendant driver testified, however, that she made a sudden stop. Plaintiff testified that she had not intended to stop, and she gave no reason why either stopping or decelerating was necessary. She testified that she knew the traffic was heavy, but that she did not look at her rear-view mirror or look back at all, that she never saw defendants' truck before it struck her and that she did not give any signal of her intention to slow down. As soon as defendant driver noticed plaintiff slow down, or, as he termed it, suddenly stop, he 'slammed' his brakes on, but was unable to avoid striking the rear of the automobile with the front of the tractor-trailer.
The question whether defendant driver was guilty of ngeligence as a matter of law, mentioned in plaintiffs' brief, was not raised below, either by requests to charge, or by motions for directed verdict or judgment non obstante veredicto. It is not before us.
Plaintiffs say the verdict is contrary to the great weight of the evidence. Whatever may be the conflicting views as to the question of defendant driver's negligence, as may be gathered from the opinions in Sun Oil Co. v. Seamon, 349 Mich. 387, 84 N.W.2d 840, evidence of the conduct of the plaintiff in the instant case presented a jury question as to her contributory negligence, and a finding against her by the jury on the question cannot be said to be against the great weight of the evidence.
Was it error for the court to fail to give plaintiffs' requested charge, in line with C.L.S.1956, § 257.402 (Stat.Ann.1952 Rev. § 9.2102), that defendant driver's striking the rear of plaintiff's vehicle makes him prima facie guilty of negligence? Plaintiffs say yes, citing Gordon v. Hartwick, 325 Mich. 534, 39 N.W.2d 61, 64, and Corbin v. Yellow Cab Co., 349 Mich. 434, 84 N.W.2d 775, 779. Gordon was tried without a jury, thus presenting no question as to instructions. While the opinion contains a statement that a 'rear end collision is presumptive evidence of negligence on the part of the driver of the following car', decision did not turn on the question of a presumption or of prima facie negligence, but on whether a finding of no negligence was against the clear preponderance of the evidence. In Corbin, as distinguished from the instant case, plaintiff had good reason to stop, for a train and line-up of cars ahead of her, she saw defendant approaching behind her, signalled her intention of stopping, and came to a stop slowly. In that case this Court, in finding, under the evidence or paucity thereof in that case, no error in the trial court's instruction similar to that here requested by plaintiffs, nonetheless said concerning the presumption here in question, that 'It is the rule that in the absence of evidence, the presumption applies * * *.' There was no absence of such evidence at bar. On the contrary, there was evidence that the plaintiff either slowed down or stopped suddenly, for no apparent reason, without giving any signal of her intent so to do. Here there was evidence which, as said in the case of Patt v. Dilley, 273 Mich. 601, 263 N.W. 749, caused the presumption to disappear. As held in that case, under such circumstances, the giving of an instruction, as plaintiffs requested, would have been error. This evidence would also bring into play the reasoning and holding in Rossien v. Berry, 305 Mich. 693, 9 N.W.2d 895, that it was not, as plaintiffs here claim, error for the court to give an instruction on the question of a sudden emergency confronting defendant driver.
Plaintiffs complain of being curtailed by the court in the cross-examination of defendant driver. No showing is made of undue curtailing, that the examination was other than repetitious, as the court styled it, what it was that plaintiffs expected to show that had not already been developed, or how plaintiffs were prejudiced in this connection. We find no error on this account.
Plaintiffs complain of the court permitting defendants' counsel to argue incorrect law, without itself correcting it. The criticized argument related to a subject of little and but indirect significance to the case, serving, at most, to reflect on the plaintiff as a witness. Plaintiffs' counsel immediately objected to the argument, it was not pursued further by defendants' counsel, plaintiffs made no request to charge on the subject and the court gave none. No prejudicial error resulted.
Trial commenced on Wednesday, May 28, 1958, continued on Thursday, May 29th, and, at the end of that day, was adjourned over the Memorial Day weekend until Tuesday, June 3rd. On the latter date one additional witness was sworn and testified, counsel made their arguments, the court charged the jurors and they returned their verdict. On June 1, 1958, Michigan Court Rule No. 23, § 3a, became effective 'in all negligence cases tried after the effective date' thereof. It provided that 'the contributory negligence of the plaintiff shall be deemed to be a matter of affirmative defense to be pleaded and proved by defendant.' Prior thereto the burden was on plaintiff to prove her freedom from...
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...testimony in this jury-tried case of Garrigan, unlike the judge-weighed testimony in the jury-tried case of Linabery v. LaVasseur, 359 Mich. 122, 101 N.W.2d 388, did not--as a matter of law--destroy the statutory 'presumption' of negligence. Which is to say that the trial lawyers and trial ......
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Chunko v. LeMaitre
...Rev. § 9.2348), with the question of whether the statutory duty was performed being a question of fact. Linabery v. LaVasseur (1960), 359 Mich. 122, 101 N.W.2d 388; Rossien v. Berry (1943), 305 Mich. 693, 9 N.W.2d 895. Even in the absence of a statute there is a common-law duty of ordinary ......