Massey v. Scripter

• Decision Date: 01 May 1977
• Docket Number: No. 3,3
• Parties: Lester B. MASSEY, Sr., and Wanda F. Massey, Plaintiffs-Appellants, v. Daniel SCRIPTER, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 44

258 N.W.2d 44

401 Mich. 385

Lester B. MASSEY, Sr., and Wanda F. Massey, Plaintiffs-Appellants, v. Daniel SCRIPTER, Defendant-Appellee.

No. 3, May Term, 1977.

Supreme Court of Michigan.

Oct. 6, 1977.

Egnor & Hamilton by Ronald Wm. Egnor by Andrew S. Muth, Ypsilanti, for plaintiffs-appellants.

DeVine, DeVine, Kantor & Serr by Allyn D. Kantor, for Daniel Scripter, defendant-appellee.

MOODY, Justice.

On July 24, 1972, the plaintiffs, Lester and Wanda Massey, were riding their newly purchased tandem bicycle in an easterly direction on the shoulder of the westbound lane of Holmes Road in Ypsilanti Township, Washtenaw County, so that they were riding against the traffic. Mr. Massey was on the tandem's front set and Mrs. Massey on the tandem's rear seat. As they approached the intersection of Ridge and Holmes Roads, Lester Massey pulled out onto Holmes Road to avoid chuckholes in the road shoulder.

A pickup truck driven by the defendant, Daniel Scripter, was legally stopped at the stop sign on southbound Ridge Road, waiting for traffic to clear on Holmes Road. As the truck started moving to enter the intersection, the tandem bicycle reached the intersection and passed slowly in front of the pickup truck. Defendant testified that as soon as he saw the bicycle he slammed on his brakes. Although the truck was traveling at a maximum speed of six miles per hour, according to a witness's testimony, an impact occurred causing both plaintiffs to sustain injuries requiring medical treatment.

The plaintiffs sued to recover for the personal injuries sustained in the accident and a jury returned a verdict of no cause of action. The plaintiffs appealed, claiming three errors in the trial court's instructions to the jury, and a fourth error in the trial judge's exclusion of testimony concerning the safety aspects of riding bicycles against the traffic. The Court of Appeals affirmed the trial court as to all four issues. 64 Mich.App. 561, 236 N.W.2d 142 (1975). This Court granted leave on November 1, 1976. 397 Mich. 888.

I

Plaintiffs claim error in the trial judge's instructions as to the standard of care required of plaintiffs if they were riding their bicycle against the traffic in violation of M.C.L.A. § 257.660; M.S.A. § 9.2360, which provides in part:

"Sec. 660. (a) Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction. * * * "

Twice during the jury charge the trial judge referred to the plaintiffs' duty to use "greater care" if they violated the statute. First, in reading the defendant's claim to the jury, the trial court stated in part:

"It is the claim of the defendant that the plaintiff bicyclists had the same duties and obligations of motorists using a highway and in particular had a statutory obligation to operate their bicycle as closely as practicable to the right-hand edge of the roadway. It is further the claim of the defendant that the plaintiffs' violation of this statute constitutes negligence as a matter of law, and such negligence contributed to the cause of this accident, and that this accident would not have occurred had the plaintiffs been operating their bicycle in accordance with their statutory duties.

"It is further the claim of the defendant that by reason of the fact that plaintiffs were operating their bicycle on the wrong side of the roadway they assumed the risk of such an experiment and had the duty to use greater care and watchfulness than if they had been on the right side of the roadway." (Emphasis added).

Later, after quoting the applicable state statute, the court instructed the jury that:

"I further instruct you, members of the jury, that if you find that the plaintiffs by their operation of the bicycle violated the laws of the roadway, operating the bicycle on the wrong side, you are required to find that the said plaintiffs would be required to use greater care than if they had kept to the right side." (Emphasis added).

Under Michigan law, while the standard of conduct required may differ depending upon the activity one is involved in, the standard of care required does not change. The standard of care required of a party is always that which a reasonably careful person would do or would refrain from doing under the circumstances. Frederick v. City of Detroit, 370 Mich. 425, 121 N.W.2d 918 (1963).

One standard of care, that care which a reasonably prudent person would use under similar circumstances, is mandated in view of the medley of circumstances that may be presented to the trier of fact. While legal scholars and law school professors may use language intimating varying degrees of care, when charging a jury but a single standard of care is permissible. This rule was presented in Felgner v. Anderson, 375 Mich. 23, 30, 133 N.W.2d 136, 140 (1965), where this Court stated:

" * * * In Frederick v. City of Detroit, 370 Mich. 425, 121 N.W.2d 918, we held it would have been error to charge the jury that the defendant in a negligence case owed the plaintiff a 'high degree of care'. The measure of duty of a negligence-charged defendant is, as stated in Frederick, at page 431, 121 N.W.2d (918) at page 920, 'reasonable care appropriate to the circumstances of the case, a standard of negligence which allows the fact finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care.' In a legal opinion addressed to bench and bar it is not inappropriate to speak in terms of degrees of care and caution, as a form of legal shorthand; but when a jury of laymen is charged on the common law of negligence, the charge must be cast only in terms which a jury will understand impose a standard measured by that which a reasonably prudent man would regard as reasonably required by the specific factual circumstances of the case." (Emphasis deleted.)

This single standard of care is equally applicable to instructions concerning the contributory negligence of a plaintiff. See SJI 11.01, Comment. We agree with Justice Souris' statement in the Frederick case that:

" * * * When trial judges describe the standard of duty in terms of 'high care,' 'higher care,' 'highest care' or the like, they impinge upon the jury's function as finder of fact." Frederick, supra, 434, 121 N.W.2d 922.

Therefore, we hold that the trial judge erred in instructing the jury that if plaintiffs' operation of their bicycle violated the Michigan statute, they would be required to use greater care than if they had kept the bicycle as near to the right side of the road as practicable. Viewing the instructions as a whole, this charge stands out as clear judicial usurpation of the jury's function. The necessity of greater or lesser care under the given circumstances is a question for the trier of fact. The Court of Appeals decision is reversed and this cause is remanded to the trial court for a new trial.

II

Although resolution of the first claimed error requires reversal, we deal now with three other alleged errors to avoid possible confusion at the new trial.

A

Plaintiffs claim that the trial court erred in refusing to give the standard civil jury instruction on last clear chance, SJI 14.01, as requested. The SJI 14.01 Note on Use explains that the instruction may not be given if a plaintiff's negligence is concurrent with the negligence of a defendant. Consequently the issue of concurrent negligence has been treated as a question of law for the trial court. Davidson v. City of Detroit, 307 Mich. 420, 12 N.W.2d 413 (1943).

The trial judge denied plaintiffs' request for SJI 14.01, finding that the plaintiffs' contributory negligence continued until the point of impact and, thus, was concurrent with the negligence of the defendant. However, we need not decide whether the trial court erred in finding concurrent negligence. The vague and oft confusing categories of antecedent, concurrent and subsequent negligence are no longer applicable law. Zeni v. Anderson,397 Mich. 117, 243 N.W.2d 270 (1976), effectively replaced SJI 14.01 with § 479 and, with one exception, § 480 of the Restatement Torts, 2d. ¹ We do not decide the applicability of the Restatement sections to the present facts. Whether a last clear chance instruction should be given at the new trial will be determined pursuant to the rule established in Zeni :

"The trial court must determine only whether plaintiff could fall into one of the categories to which last clear chance may be appropriately applied, and then should instruct the jury accordingly.

"The jury will be asked to determine if plaintiff falls within one of the two Restatement categories, that of helpless or of inattentive plaintiff, and then, to decide if defendant's conduct meets the appropriate standard which would give plaintiff the benefit of the last clear chance doctrine." Zeni, supra, 157, 243 N.W.2d 289.

The trial judge determines whether there is evidence indicating that the plaintiffs could fall into one of the two Restatement categories. If the trial court finds such evidence, the court instructs the jury to consider the evidence and determine if the plaintiffs qualify as either helpless or inattentive plaintiffs and, if so, decide pursuant to the Restatement standard whether defendant's conduct was the final and decisive factor in producing the injury.

B

Plaintiffs sought to introduce the opinion testimony of a state trooper that it is safer to ride a bicycle on the left side of the roadway facing oncoming traffic, even though such conduct violates a Michigan statute. Defendant objected to the admission of such testimony and the trial judge excluded the proffered testimony without stating his reason on the record.

The Zeni case resolves the question of the admissibility of such testimony.

The plaintiff in Zeni was walking...