McKinney v. Anderson

• Decision Date: 02 September 1964
• Docket Number: Nos. 125,126,s. 125
• Citation: 129 N.W.2d 851,373 Mich. 414
• Parties: James McKINNEY, Plaintiff and Appellant, v. Herman A. C. ANDERSON, Virginia S. Anderson, and David M. Anderson, jointly and severally, Defendants and Appellees. Ora Lee McKINNEY, Plaintiff and Appellant, v. Herman A. C. ANDERSON, Virginia S. Anderson, and David M. Anderson, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 851

129 N.W.2d 851

373 Mich. 414

James McKINNEY, Plaintiff and Appellant, v. Herman A. C. ANDERSON, Virginia S. Anderson, and David M.

Anderson, jointly and severally, Defendants and Appellees.

Ora Lee McKINNEY, Plaintiff and Appellant, v. Herman A. C. ANDERSON, Virginia S. Anderson, and David M.

Anderson, jointly and severally, Defendants and Appellees.

Nos. 125, 126.

Supreme Court of Michigan.

Sept. 2, 1964.

Earl T. Prosser, James W. Cowell, Detroit, for plaintiffs and appellants.

Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, John D. Hayes, Charles T. McGorisk, Detroit, of counsel, for defendants and appellees.

Before the Entire Bench.

KAVANAGH, Chief Justice.

Plaintiffs appeal from judgments upon a jury verdict of no cause for action in these automobile negligence cases, consolidated by stipulation both below and here on appeal, and from denial of their motions for judgment non obstante veredicto and for a new trial. They allege the trial court erred in refusing to grant their motion for a directed verdict made at the close of their own proofs and renewed at close of all proofs. The latter motion alleged defendant was guilty of negligence as a matter of law and asked the general question of damages only be put to the jury. Plaintiffs further claim the trial court committed reversible error in certain jury instructions as follows:

(1) The trial court charged on abstract principles of law, based upon facts which were not in evidence, which confused and misled the jury to return a verdict of no cause for action.

(2) The court omitted from his charge to the jury the law that the contributory negligence of the driver, if any, cannot be imputed to his guest passenger.

(3) The court, in his instructions, completely disregarded the admissions of the defendant driver in relation to the assured-clear-distance-ahead statute and the proximate cause of the automobile collision.

(4) The court charged the jury on the emergency doctrine when the evidence did not support such a charge.

Plaintiff James McKinney sued in the Oakland county circuit court to recover $35,000 for permanent personal injuries and for loss of the comfort and society of his wife, Ora Lee McKinney, who also sued to recover $15,000 for permanent personal injuries to herself and for loss of her husband's society and comfort.

Defendants' answer pleaded a general denial and affirmatively pleaded contributory negligence on the part of plaintiffs in stopping and standing their vehicle on a traveled highway, pushing a vehicle ahead of their vehicle without seeing that such movement could be made with safety, failing to maintain proper taillights, and creating an obstruction on the highway. As another affirmative defense, the defendants pleaded that defendant driver was confronted with a sudden emergency that was not attributable to him.

Plaintiff James McKinney had his wife Ora Lee McKinney as a passenger in his car on October 8, 1960, about 7:30 p. m., and was headed in a southerly direction on Woodward avenue, near the intersection of Long Lake road, in the city of Bloomfield Hills. Plaintiffs' automobile was at the time of the collision in the first lane of traffic and was pushing a disabled 1957 Buick automobile owned by their son and operated by one Charlie Jones. Defendant David Anderson, a minor 16 years of age, at the same time and place was also operating an automobile in a southerly direction on Woodward avenue in the first lane of traffic, to the rear of plaintiffs' automobile. This auto was owned by Herman A. C. and Virginia Anderson, who had given David permission to drive it. Woodward avenue at the scene of the collision is an 8-lane highway, 4 lanes going south and 4 north.

Defendant David Anderson drove his automobile into the rear of plaintiffs' car, which collision allegedly caused the injuries involved in this suit.

Plaintiffs' witnesses testified plaintiffs' car was moving at the time of the collision and that no headlights were observed approaching from plaintiffs' rear.

Defendant David Anderson testified he was driving his father's automobile, had 2 companions in the car, and was traveling about 45 miles per hour going south on Woodward in a 50 mile per hour speed limit zone; that his headlights were on; that when he came to the crest of a hill he noticed the rear taillights of an automobile about 400 feet away; that when he was about 200 feet away from the McKinney automobile he began to think plaintiffs' automobile was traveling slower than he was driving; that at that point he observed a car in the left lane next to his; that when he was within 100 or 200 feet of the McKinney car his speed was still 40 to 45 miles per hour; that he then released the accelerator; that when he was about 50 to 100 feet from the rear of the McKinney car, he applied the brakes. He further admitted he was traveling too fast to be able to control his car, which was the reason he ran into the McKinney car; that it takes considerably longer than 100 feet to stop when one is going 45 miles per hour.

Ted Yntema, a 17-year-old passenger and a witness for defendants, testified that defendants' car's headlights were on, that he noticed ...