McKenzie v. Nelson

• Decision Date: 15 April 1958
• Docket Number: No. 12,12
• Citation: 353 Mich. 59,91 N.W.2d 15
• Parties: Peary W. McKENZIE, Plaintiff and Appellant, v. Troy L. NELSON, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 15

91 N.W.2d 15

353 Mich. 59

Peary W. McKENZIE, Plaintiff and Appellant, v. Troy L. NELSON, Defendant and Appellee.

No. 12.

Supreme Court of Michigan.

April 15, 1958.

Leitson & Dean, Flint, Richard C. Fruit, Flint, for appellant.

Ransom & Fazenbaker, Flint, for appellee.

Before the Entire Bench.

BLACK, Justice.

This is a so-called pedestrian case. The jury returned a verdict for plaintiff in the sum of $3,000. Defendant's motion for judgment notwithstanding the verdict was granted for reasons given by the trial judge as follows:

'The Court: Well, sometimes in these cases, of course, when a jury renders a verdict that is final, if it is warranted by the facts. There are two elements here. In the first place, the facts do not warrant that verdict, in the opinion of the Court, and in the second place, in the opinion of the Court the jury considered it was not warranted, because they came back and asked this question, which is very peculiar: 'If both parties are guilty of negligence, could the plaintiff recover.' The Court told them in the negative. They were out for some time and returned with the verdict as given, apparently showing that it is either a compromise or sympathy verdict on the part of the jury, and not in accordance with the facts adduced in the case, so a verdict of no cause for action will be entered, non-obstante.'

On motion for directed verdict--and necessarily on motion for judgment notwithstanding verdict--we have said from time to time that the trial judge must guide his deliberation and decision by this rule; that the proof and all fair inferences arising from that proof must be viewed in light favorable to the party constituting target of the motion. ¹ For a measure of gently reproving comment to the point, see Mr. Justice Voelker in Shaw v. Bashore, Mich., 90 N.W.2d 688. Here, in the case before us, is the proof and inference so viewed.

North Saginaw street, in Flint, is the heavily traveled main thoroughfare leading toward Detroit in a southerly direction and Saginaw in a northerly direction. Three and sometimes four lanes of traffic pass regularly in each direction. At the intersection of Baker street traffic is controlled by conventional traffic control signals. Some 100 to 135 feet north of Baker plaintiff undertook to cross North Saginaw, from east to west, at a time when both sides of North Saginaw were temporarily free of traffic. When he started across northbound traffic was held at Baker by the traffic signal. It was released shortly after plaintiff started.

Plaintiff reached the center line of North Saginaw prior to imminent approach of the cars theretofore released by the Baker street signal. At that time and place, realizing that southbound traffic was bearing down on his intended path, plaintiff stopped to await passage of such southbound traffic before attempting to pass further toward the west curb. He says that he stood on the center line, watching southbound traffic, and that he was struck by a northbound car he did not see. This car, as it turned out, was the one driven by defendant.

Defendant motorist testified he was driving north, on North Saginaw, in the lane of traffic 'next to the center line'; that he recalled stopping, by command of a traffic control signal, south of the point where the accident occurred; that as he approached such point another car was preceding his car, which preceding car was 'straddling the lanes' (between the traffic lane nearest the center line and the one next to defendant's right); that he was between a half car length and three-quarters of a car length behind the car so preceding him, and that he was then driving at the rate of 20 to 25 miles per hour.

Defendant did not see the plaintiff until the approximate time the latter was struck. He testified that the motorist ahead 'momentarily slammed on his brakes and swerved to one side' (the right) immediately prior to the collisive impact, and that he, defendant thereupon applied brakes with result that his car was brought to a near stop prior to such impact. The point of impact was at or near the left front headlight of defendant's car. Plaintiff was thrown to the pavement and injured.

We turn now to the questions brought here--whether on favorable-to-plaintiff view of the proof and inferences from that proof the jury was entitled to find causal negligence on defendant's part and freedom from contributory negligence on plaintiff's part.

As to the first question we need but say that the jury could infer negligence, and causal connection between such negligence and plaintiff's injuries, from defendant's testimony that he was following another car, at a speed of 20 to 25 miles per hour, with an average distance of no more than 10 to 15 feet separating the two cars. If the jury believed such testimony, and if it believed the related testimony of plaintiff that he was standing at or near the center line of the street, it (the...