McDuffie v. Root

Decision Date05 January 1942
Docket NumberNo. 16.,16.
Citation300 Mich. 286,1 N.W.2d 544
PartiesMcDUFFIE v. ROOT.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Action by Bessie L. McDuffie against Marcella Root for personal injury claimed to have been caused by defendant's negligent operation of an automobile. From a judgment for plaintiff, defendant appeals.

Affirmed.Appeal from Circuit Court, Muskegon County; Joseph F. sanford, judge.

Argued before the Entire Bench.

Clifford A. Mitts, Jr., of Grand Rapids, for appellant.

Harold H. Smedley, of Muskegon, and Robert Proctor, Sr., of Elkhart, Ind., for appellee.

BOYLES, Justice.

This is an action for personal injury claimed to have been caused by defendant's negligent operation of a motor vehicle on the highway. Plaintiff had verdict by jury for $10,000 which was reduced to $5,000 on motion for new trial, plaintiff consenting to the remittitur. On the remittitur and on denial of motion for new trial, judgment was entered for $5,000 which defendant reviews by general appeal, assigning 13 grounds for reversal.

On April 28, 1939, plaintiff was driving south on trunk line highway US-31 between Muskegon and Grand Haven. It was the middle of the afternoon on a clear day, the pavement was dry, and there was no southbound traffic in sight ahead of her. The road was a paved two-lane highway and at the place of the accident there was a gravel shoulder wide enough upon which to park a car. On the west side (plaintiff's right), the road sloped down from the shoulder into a ditch about three feet deep. There were several cars going north in the east lane of the pavement and there were four children walking on the gravel shoulder on the west side. Testimony as to the remaining facts is for the most part in direct conflict,except for the fact there was no actual collision between the two cars.

Plaintiff claims that the accident was caused because defendant pulled out of her northbound lane of traffic and traveled north on the wrong side of the road, attempting to pass a car ahead of her. That when defendant came over in plaintiff's lane, about 250 or 300 feet in front of her, plaintiff applied her brakes, pulled to her right to drive out on the shoulder, that it was occupied by four children returning home from school, that to avoid running them down plaintiff released her brakes and turned back to the pavement until she cleared the children and a mailbox close to them. That plaintiff then cut back west sharp on the shoulder, that defendant, then on plaintiff's side, passed without colliding, but that plaintiff was unable to get back on the pavement, the slope pulling her down, her car hit the bottom of the ditch and rolled over, whereby plaintiff sustained serious personal injuries. Both cars were traveling about 45 miles an hour.

Defendant claims that as she was driving north, she came up behind another vehicle in her lane of traffic, observed traffic conditions to the north, saw an automobile approaching about a quarter of a mile away, passed the vehicle ahead of her and pulled back to her own side behind another car when the approaching car was about 200 feet away; that when she pulled in behind the other car she noticed the approaching car zigzagging, that when it got about 25 feet away it seemed to be coming right at her on her side of the highway, that when the cars passed, plaintiff's running board and fender were on the black line in the center. On the issues of fact, the jury found for plaintiff.

The grounds relied upon by defendant for reversal may be grouped as follows: (1) Refusal to grant defendant's motion for a directed verdict; (2) prejudicial error in receiving testimony; (3) errors in refusing defendant's requests and in charging the jury; (4) that the verdict was contrary to the great weight of the evidence; (5) excessive verdict.

(1) Refusal to grant defendant's motion for a directed verdict:

At the conclusion of plaintiff's proofs and again before the issues were submitted to the jury, defendant appropriately moved for a directed verdict, which motions were denied. Plaintiff's testimony and the legitimate inferences to be drawn from established facts must be viewed most favorably to plaintiff. Hale v. Cole, 241 Mich. 624, 217 N.W. 898;Thurkow v. City of Detroit, 292 Mich. 617, 291 N.W. 29. Under this view, defendant while attempting to pass a car ahead of her drove into plaintiff's traffic lane, caused plaintiff to apply her brakes, attempt to pull off the pavement, she found the shoulder occupied by children, in order to avoid striking them was compelled turn back on the pavement where she passed the children and a nearby mailbox, then turned abruptly back onto the shoulder where the slope pulled her car downward into the ditch where it turned over. That this was done in order to avoid a head-on collision with defendant. Accepting plaintiff's version which was established to a considerable extent by the testimony of witnesses, defendant would be guilty of negligence and plaintiff free from contributory negligence. There was no error in refusing to direct a verdict.

(2) Error in receiving testimony:

Defendant claims the court erred in receiving testimony of injuries to plaintiff's eyes, on the ground that plaintiff's declaration was not broad enough to include this proof. The declaration alleged personal injury as follows: ‘That plaintiff was seriously and permanently injuries. That plaintiff's injuries consisted of the following: A fracture in the base of the skull; a severe bruising and laceration over right frontal area, and right lateral aspect of skull and occipital region; a bruising of the upper cervical vertebrae; a fracture of left fifth rib; a hematoma over lateral proximal surface of left thigh and left buttock; and a severe contusion of coccyx. That as a result of said injuries the said plaintiff suffered a great traumatic shock and a destructive lesion in the central nervous system, and generally became sick, sore, lame and disabled and suffered great pain from said injuries and still suffers pain therefrom.’

In some jurisdictions it is held that an injury must be specifically alleged, or must be the natural and necessary result of injury complained of in the pleadings, to justify the admission of evidence of such injury. Such is not the Michigan law. In this State, it is merely required that the injury sought to be proved must be the natural result of the injury complained of in the pleadings. If such injury can be traced to the act complained of, and is such as would naturally follow from the alleged injury, it need not be specifically averred. Groat v. Detroit United Railway, 153 Mich. 165, 116 N.W. 1081. The declaration charged a fracture of the skull, a severe bruising over the right frontal area, right lateral aspect of skull and occipital region, and that plaintiff suffered a destructive lesion in the central nervous system. Medical testimony showed that plaintiff had an unnatural, large, unreacting left pupil, which could only follow definite injury to the brain substance; that the defect in the left eye was from a brain injury, more specifically a brain lesion than an eye lesion; that the pupillary reaction and discrepancy in vision was a permanent physical defect. There was also testimony of excessive lachrymation. This testimony was brought out in depositions taken some time before trial and on cross-examination by the defendant. According to the medical testimony, these injuries were the natural result of the skull fracture and injury, and the lesion in the central nervous system. The defendant was not taken by surprise and the testimony was admissible.

Defendant claims that it was error to admit the following testimony of Dr. Koehler:

‘Q. You may state whether or not at the time you examined her she complained of having suffered pain in that place.

‘Mr. Mitts: I object to any complaints, as superficial, hearsay and improper.

‘Mr. Proctor: You may answer, yes or no. ‘A. She complained of pain and difficulty of sitting ever since the time of her injury.’

Defendant cites many cases to the effect that when a physician is not called in to aid or give medical treatment, but merely makes an examination for the purpose of testifying, the testimony of the doctor that the patient complained of pain is not admissible. However, that is not the case at bar. Although defendant claims that the purpose of the examination was to prepare the doctor to testify, the testimony of the doctor was: ‘I did not make that examination preparatory to being able to testify in this action which she had against Marcella Root. I made this examination for Mrs. McDuffie and not for any attorney, and not with any intention of testifying. The reason I do any examination is for the purpose of determining what treatment can be given.’

Taking this testimony as true, as the court must have done when admitting the evidence, the case at bar is not within the rule cited...

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