Lucas v. Carson

• Decision Date: 24 February 1972
• Docket Number: No. 3,Docket No. 10776,3
• Citation: 38 Mich.App. 552,196 N.W.2d 819
• Parties: Winnie Lord LUCAS, Plaintiff-Appellant, v. Otis CARSON and Beatrice Carson, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 819

196 N.W.2d 819

38 Mich.App. 552

Winnie Lord LUCAS, Plaintiff-Appellant, v. Otis CARSON and Beatrice Carson, Defendants-Appellees.

Docket No. 10776.

Court of Appeals of Michigan, Division No. 3.

Feb. 24, 1972.

Released for Publication May 4, 1972.

Randolph McCarthy, Jr., Sloan & McCarthy, Kalamazoo, Russell W. Conroy, Battle Creek, for plaintiff-appellant.

Bert W. Schulz, Sullivan, Hamilton & Ryan, Battle Creek, for defendants-appellees.

Before FITZGERALD, P.J., and R. B. BURNS and HOLBROOK, JJ.

FITZGERALD, Presiding Judge.

Plaintiff appeals as of right from a judgment entered on October 26, 1970, pursuant to a jury verdict of no cause of action in favor of defendants, rendered on September 30, 1970.

At approximately 5:30 p.m. on the afternoon of October 29, 1967, plaintiff was seated in the right front seat of an automobile which had stopped for a traffic signal at an intersection in Battle Creek. While stopped for the traffic signal, the car in which plaintiff was riding was struck from behind by another vehicle owned by defendant Otis Carson and being driven by defendant Beatrice Carson. It had been raining most of the day, and the pavement was wet at the time of the accident. The resulting impact caused plaintiff to be thrown frontward and backward and broke the front bench-type seat of plaintiff's vehicle.

After the accident, plaintiff complained of neck pain was x-rayed and treated at the emergency room of a local hospital. X-rays at this time showed moderately-advanced degenerative arthritic changes in the cervical spine which most likely antedated the date of the accident. Plaintiff was treated symptomatically at this time for acute cervical strain.

Defendant stated that she was following at least two car lengths behind plaintiff's vehicle. She had her lights and windshield wipers working and had made several stops previously and had experienced no sliding or skidding on the wet pavement. She stated she was not watching the lights of plaintiff's vehicle, but was watching the car itself, that she observed said vehicle come to a stop, that she then applied and pumped her brakes, but her vehicle inexplicably slid into the rear of plaintiff's stopped car.

Defendant estimated her speed prior to the accident at approximately 15--20 miles per hour and stated that given her speed and her following distance, she believed she should have been able to stop in time to avoid a collision, except for the unexpected and unexplained slipperiness which caused her vehicle to skid. Although testimony by the investigating police officer adverted to the fact that an accumulation of oil on the highway can sometimes result in slippery patches at the onset of a rain, there was no testimony in this case which indicated that such a condition existed at the time and place of the collision. Furthermore, this officer estified that the oil slicks are usually washed away after the first hour or so of rain.

An orthopedist who treated plaintiff for some time following the accident testified that plaintiff first complained of back pain on December 5, 1967. Since plaintiff's complaint of low back pain and diminished capacity resulting therefrom constituted the gravamen of her action, defendants sought to show that since plaintiff's complaint of back pain followed the accident by over one month, it was unlikely that said back ailment was causally related to the collision. The witness stated that in his opinion plaintiff's symptoms of neck discomfort seemed definitely related to the accident, but added that it was conceivable that plaintiff's pre-existing arthritic condition was aggravated by the accident. Testimony of other treating physicians was conflicting, creating a large number of questions for jury consideration.

Plaintiff also produced testimony of several friends and acquaintances who commented upon plaintiff's diminished capacity due to back pain following the accident.

After the jury verdict in favor of defendants, plaintiff moved for a new trial claiming that the verdict was contrary to law and against the great weight of the evidence. The trial court denied plaintiff's motion and appeal followed.

The issues will be treated In seriatim:

1. Did the trial court err in refusing to grant plaintiff a directed verdict?

Plaintiff's complaint alleged that defendants violated the following statutory provisions: M.C.L.A. § 257.627; M.S.A. § 9.2327 (Assured Clear Distance Statute); M.C.L.A. § 257.643; M.S.A. § 9.2343 (Following Too Closely); and M.C.L.A. § 257.402; M.S.A. § 9.2102 (Rear-end Collision Raising Presumption of Negligence). The trial court properly instructed the jury regarding the contents of these statutes and the legal effect of a jury finding that defendant Beatrice Carson had violated any or all of the said statutes. At the close of plaintiff's evidence, plaintiff's attorney moved for a directed verdict on the ground that defendants were negligent as a matter of law. This motion was denied by the trial judge. Plaintiff renewed her motion at the conclusion of defendants' evidence and the motion was again denied. Plaintiff now contends that the trial court's denial of these motions constituted prejudicial error.

In reviewing the trial court's denial of a directed verdict in favor of plaintiff, the evidence must be viewed in the light most favorable to defendants. McKinney v. Anderson, 373 Mich. 414, 129 N.W.2d 851 (1964). If the evidence, when so viewed, could lead reasonable men honestly to reach different conclusions upon the questions presented, the issue is one for the jury and not for the court. Anderson v. Gene Deming Motor Sales, Inc., 371 Mich. 223, 123 N.W.2d 768 (1963). Utilizing this standard, and following the format in defendants' brief, the questions presented by plaintiff's first issue will be discussed under two general topics.

A. M.C.L.A. 257.402; M.S.A. 9.2102 (Rear-end Collision Raising Presumption of Negligence).

Under this statute, a motorist who collides with the rear end of another vehicle traveling ahead and in the same direction is presumed negligent. Both parties admit that this statute was applicable under the facts pertaining in the case at bar. The presumption raised by this statute is, of course, a rebuttable one. Garrigan v. LaSalle Coca-Cola Bottling Co., 362 Mich. 262, 106 N.W.2d 807 (1961); Patzer v. Bowerman-Halifax Funeral Home, 370 Mich. 350, 121 N.W.2d 843 (1963). However, the usual grounds relied upon for rebuttal of this presumption are encompassed in the so-called 'sudden emergency doctrine', which does not appear in the instant case.

Defendants contend, however, that the 'sudden emergency doctrine' is not the sole basis for rebutting the presumption of negligence arising from the rear-end collision statute.

The general rule appears to be that evidence required to rebut this presumption As a matter of law should be positive, unequivocal, strong, and credible. Krisher v. Duff, 331 Mich. 699, 50 N.W.2d 332 (1951); Petrosky v. Dziurman, 367 Mich. 539, 116 N.W.2d 748 (1962). In the case at bar, defendant driver contended that she was at all times driving in a reasonable and prudent manner.

Although the issue presented here is a close one, the trial court was correct in its decision that there was sufficient evidence on the issue of reasonable care to present a factual consideration for the jury and to preclude a directed verdict for plaintiff as a matter of law. Although the statutory presumption of negligence was certainly not rebutted by defendants' evidence as a matter of law, the trial court decided that there was sufficient evidence at least to generate a jury question regarding rebutting of the presumption.

B. M.C.L.A. § 257.627; M.S.A. § 9.2327 (Assured Clear Distance Statute), and M.C.L.A. § 257.643; M.S.A. § 9.2343 (Following Too Closely).

The following quotation from Hackley Union Nat'l Bank & Trust Co. v. Warren Radio Co., 5 Mich.App. 64, 71, 145 N.W.2d 831, 834 (1966), indicates the current standard applicable to interpretation of the above-cited statutes:

'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. Sun Oil Company v. Seamon, (1957), 349 Mich. 387, 84 N.W.2d 840; Nass v. Mossner, (1961), 363 Mich....