McKay v. Hargis

• Decision Date: 01 June 1957
• Docket Number: No. 69,69
• Citation: 351 Mich. 409,88 N.W.2d 456
• Parties: Kenneth W. McKAY, Plaintiff and Appellee, v. Jerry HARGIS, d/b/a Jerry's Used Cars, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 456

88 N.W.2d 456

351 Mich. 409

Kenneth W. McKAY, Plaintiff and Appellee, v. Jerry HARGIS, d/b/a Jerry's Used Cars, Defendant and Appellant.

No. 69, June Term, 1957.

Supreme Court of Michigan.

March 5, 1958.

Claude J. Marshall, Lansing, Leonard B. Crandall, Jackson, for defendant and appellant.

Jack W. Warren, Lansing, for plaintiff-appellee.

Before the Entire Bench, except CARR, J.

EDWARDS, Justice.

An Ingham county jury awarded $20,000 damages to the plaintiff in this case. Plaintiff McKay was a police officer of the city of Lansing who suffered injuries on February 18, 1954, at about 11:00 p. m., when his police car went out of control and struck a tree while plaintiff was engaged in pursuing defendant Hargis because of alleged traffic violations.

On appeal defendant's substantial claims are 1) that plaintiff was guilty of contributory negligence as a matter of law and hence that defendant's motions for a directed verdict or judgment non obstante veredicto should have been granted; and 2) that the award was grossly excessive.

In dealing with the first of these issues, we recite the facts from the view of them favorable to plaintiff which the jury apparently took. Gapske v. Hatch, 347 Mich. 648, 81 N.W.2d 337; Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97, 19 A.L.R.2d 333.

The first portion of this story we will quote from the testimony of plaintiff's witness Martin, a police officer who was riding in the right-hand front seat of the police car beside the plaintiff:

'I had been a member of the Lansing police force at the time of the accident approximately 2 years and 9 months. Durig that time I had various duties. I had worked about 1 year of the time I had been working for the Lansing police department at the time of the accident in patrol duty from a scout car. On the evening of February 18th, 1954 I observed the defendant's car approaching from the west on Grand River at the time. Both cars were approaching the Larch street intersection. The Cadillac driver executed a left hand turn, cutting the corner, and went north on Larch street. He swung to the right hand side of Larch as he completed the turn. At that time Mr. McKay and I decided to follow him and stop the driver for making the turn as he did.

'We were about 3 cars behind the Cadillac when we pulled around the corner to follow him. We were about 1 car length behind at Liberty street intersection, as the driver of the Cadillac definitely slowed down and we closed the gap. Both cars were going from 15 to 25 miles per hour from the time they turned the corner at Larch up to Liberty. I can't say to what speed the driver of the Cadillac slowed at Liberty. We did not pull up alongside the defendant at any time nor did we sound our siren in the first block or have our oscillating red light on at any time. In the first block north of Grand River, we fell in behind the Cadillac, intending to stop him and tried to get up alongside of the Cadillac car. The speed of both cars was approximately constant from Grand River to Liberty street and then the defendant slowed down before he reached the intersection and when in the intersection, he started to accelerate the speed of his car. The defendant accelerated rapidly and the police car took out in pursuit of the Cadillac. When the Cadillac reached the railroad tracks, the police cruiser was doing 65 to 70 miles per hour and the defendant was gaining on the cruiser, increasing the distance between the 2 cars slightly. We were about 4 car lengths behind the Cadillac when we crossed the railroad tracks. When we reached the city limits at Chilson street, the speed of the police cruiser was 85 and 90 miles per hour. When the defendant crossed the railroad tracks, the Cadillac was near the center line of the street. At the first curve, the driver went to the extreme west edge of the highway, the outside lane for southbound traffic. The driver of the Cadillac at the time he passed the Williams car, was entirely to the left of the center line of the highway.'

The events from this point on are described thus by an apparently disinterested witness, Verne Williams, Jr., the driver of the car just referred to above:

'My full name is Verne Williams, Jr. I live at 2780 E. East Grand River avenue, I recall the evening of February 18, 1954. I was driving north on US-27, in my 1949 Oldsmobile. My wife was with me. She is not here in court. I know where the Red Rail is located north of the city of Lansing. While driving north and when just south of the intersection of Community street and US-27 I became aware of the presence of a police vehicle. I was then outside the city limits, traveling in the inside northbound lane. The lane closest to the center line. The police vehicle was then near the city limits about 2 1/2 blocks south of me. I became aware of its presence when I heard the siren. I then looked in the rear view mirror and saw the light of the car. My hearing is normal. There was not room because of the traffic for me to at once pull over to the right side of the road but I did later pull over to the right shoulder. Before I got over to the shoulder I became aware of the presence of the Cadillac. It was coming north straddling the double yellow line, 4 or 5 car lengths behind me. I was then in the inside lane, traveling at 45 miles per hour which is the speed limit for that zone. Based on 18 years driving experience I would estimate that the Cadillac approached and passed me at about twice my speed. At the time the Cadillac passed I was in the process of taking my car into the outside lane. In passing the driver of the Cadillac swung over to his left into the southbound lane. After he passed and when several car lengths ahead of my car the Cadillac driver cut to the right in front of me. This did not cause me any concern because by the time he passed me I was out of the way and in the outside line. He then swung to the right, slowed down and proceeded north for a short distance along the shoulder of the road when he made an abrupt turn into the north entrance of the Red Rail parking lot.

'Defendant's exhibit 'A' indicates that the north entrance is 46 feet wide. The police car went into a spin and hit a tree. The driver of the police car apparently elected to take the left side in order to avoid striking the Cadillac which was directly across the pavement. The police car caught on fire. I helped the officer out of the police car.'

Defendant produced no eyewitness other than himself, and his testimony is generally to the effect that while he drove the car in question at the time and place in question, he did not drive it at the unlawful speeds cited, and that the turn he made resulted from his sudden decision to stop at the Red Rail tavern, which he proceeded to do without ever knowing of any police chase or accident.

Defendant's version apparently strained the credulity of the jury too far. It does ours, too.

The jury patently found defendant negligent and found that defendant's negligence was a proximate cause of plaintiff's injury. No appeal is taken on this point. Defendant now claims that plaintiff's own version of the facts shows that he was guilty of negligence which contributed as a proximate cause to his own injury, and that there was no evidence from which the jury could properly have found the contrary.

It appears beyond doubt that at the time and place of the accident plaintiff's police car was traveling in excess of the speed limit and was engaged in overtaking defendant's automobile. The evidence presented by plaintiff, and accepted by the jury, showed that plaintiff was engaged in official police work in seeking to apprehend the defendant.

Michigan law authorizes police vehicles to exceed the speed limit while engaged in emergency work, providing a siren is sounded and life and property are not endangered thereby:

'(a) The provisions of this chapter applicable to the drivers of vehicles upon the highways shall apply to the drivers of all vehicles owned or operated by the United States, this state or any county, city, town, district, or any other political subdivision of the state, subject to such specific exceptions as are set forth in this chapter with reference to authorized emergency vehicles.

'(b) The driver of any authorized emergency vehicle when responding to an emergency call, but no while returning therefrom, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

'(c) The driver of an authorized emergency vehicle may:

'1. Park or stand, irrespective of the provisions of this act;

'2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

'3. Exceed the prima facie speed limits so long as he does not endanger life or property;

'4. Disregard regulations governing direction of movement or turning in specified directions;

'(d) The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible signal by bell, siren or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least 1 lighted lamp displaying a flashing, oscillating or rotating red light visible under normal atomospheric conditions from a distance of 500 feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.' C.L.S.1956, § 257.603 (Stat.Ann. 1952 Rev. § 9.2303).

See, also, C.L.S.1954, § 257.2 (Stat.Ann. 1952 Rev. § 9.1802); C.L.S.1956, § 257.632 (Stat.Ann. 1952 Rev. § 9.2332); 5 Am.Jur., Automobiles, § 294.

Another section requires all drivers to yield that right of way to authorized emergency vehicles by pulling to a stop at the right side of the roadway. C.L.S.1956, § 257.653 (Stat.Ann. 1952 Rev. § 9.2353).

The applicable portions...