Motley v. Robinette

• Decision Date: 23 September 1975
• Docket Number: Docket No. 20221
• Citation: 64 Mich.App. 470,236 N.W.2d 102
• Parties: Flora Elizabeth MOTLEY and Samuel Motley, Plaintiffs-Appellants, v. Charles Edward ROBINETTE, Defendant-Appellee. 64 Mich.App. 470, 236 N.W.2d 102
• Court: Court of Appeal of Michigan — District of US

Page 102

236 N.W.2d 102

Flora Elizabeth MOTLEY and Samuel Motley Plaintiffs-Appellants, v. Charles Edward ROBINETTE, Defendant-Appellee.

Docket No. 20221.

64 Mich.App. 470, 236 N.W.2d 102

Court of Appeals of Michigan.

Sept. 23, 1975.

Released for Publication Dec. 18, 1975.

[64 MICHAPP 472] Ripple & Chambers by John F. Chambers, Detroit, for plaintiffs-appellants.

George A. Googasian, Bloomfield Hills, for defendant-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

V. J. BRENNAN, Judge.

The plaintiffs, Flora and Samuel Motley, appeal from a judgment of no cause of action entered upon a jury verdict on March 27, 1974, in Oakland County Circuit Court. We reverse.

On January 18, 1970, between 2:30 a.m. and 3:00 a.m., plaintiff Flora Motley, while proceeding west on M--59 in Oakland County, collided with an automobile driven by one Turpin. Plaintiff testified that she had consumed four alcoholic drinks during the preceding four hours. The plaintiff's auto and the Turpin auto were immobilized by the collision and blocked the east-bound lane on the two-lane highway.

Shortly after the collision, a Mr. Mitchell came upon the scene and stopped to render assistance. Mitchell parked on the north side of the highway just west of the disabled vehicles, turned on his four-way flashers, and approached plaintiff's vehicle. Finding plaintiff shaken, but not visibly injured, Mitchell advised her to remain in the car, and he proceeded to direct traffic with his flashlight. The night was cold and there was blowing snow. Other drivers stopped to render assistance. One man stationed himself on the south side of the highway with Mr. Mitchell and another stationed himself on the north side of the highway to [64 MICHAPP 473] assist in directing traffic with flashlights. A pickup truck stopped, and Turpin took refuge therein. The truck's cab lights were illuminated.

A period of from five to 20 minutes elapsed, during which an undetermined number of vehicles passed the scene without incident. Defendant Robinette then came upon the scene proceeding east, travelling at an estimated 45--50 miles per hour and struck plaintiff's car, injuring plaintiff and causing further damage to her vehicle.

In a prior action, plaintiff was held to be liable to Turpin for damages caused by the first collision. Plaintiff's insurer settled defendant's claim against plaintiff. The instant case is plaintiff's countersuit against defendant.

At the close of plaintiff's proofs, defendant moved for directed verdict on the grounds that subsequent negligence was not properly before the court because it did not appear in the pleadings and because there were insufficient proofs on the elements of subsequent negligence. The trial court agreed with defendant's contention and defendant thereupon rested without offering any proofs. The plaintiff requested that should the court instruct the jury on contributory negligence, they also be read Standard Jury Instruction 14.01 dealing with subsequent negligence. The court refused and plaintiff objected. The court also read Standard Jury Instruction 13.02 which instructs on the standard of care to be exercised by one whose abilities are impaired by voluntary intoxication. The plaintiff objected to this instruction as well. The jury returned a verdict of no cause of action.

The plaintiff brings two allegations of error on appeal: 1) that it was error for the trial judge to refuse to give instructions on the issue of subsequent negligence, and 2) that it was error for the [64 MICHAPP 474] judge to read Standard Jury Instruction 13.02 relative to one who 'voluntarily impairs her driving'.

The plaintiff requested Standard Jury Instruction 14.01 be given, which reads as follows:

'Even though you find plaintiff by her own negligence placed herself in a position of danger, that will not defeat plaintiff's claim for damages if defendant failed to use ordinary care with the means at hand after defendant knew or should have known of plaintiff's danger.'

The Note On Use accompanying Standard Jury Instruction 14.01 states:

'This instruction should be used only where there is evidence of plaintiff's precedent negligence, placing him in a position of danger. If the negligence of a plaintiff is concurrent with the negligence of a defendant, the instruction is not applicable.'

The trial judge apparently ruled that the negligence of the plaintiff was concurrent as a matter of law. He stated:

'The Court finds that the plaintiff was able to remove herself from the peril and did not do so. There is no testimony why she did not, there was some testimony that the driver's door was jammed or stuck or couldn't get it open, but there was no indication of injury, no indication that she couldn't go out go out (sic) the passenger's side of the car. The plaintiff was well aware of M--59, well aware that was a main thoroughfare and should have removed herself from the car after the accident, and that is one of the prerequisites for subsequent negligence.'

We find that a brief review of the doctrine of [64 MICHAPP 475] subsequent negligence, or 'last clear chance' as it is called in many jurisdictions, is here required.

While contributory negligence and subsequent negligence are often closely related in the facts of a particular case, they proceed on entirely different rationales and serve distinctly different policies. Contributory negligence bars a plaintiff's recovery on the theory that a plaintiff should not be allowed to recover for an injury of which he is partly the cause. Klein v. Detroit Metallic Casket Co., 336 Mich. 157, 57 N.W.2d 477 (1953). Contributory negligence can be quite harsh if the negligence of the defendant is relatively great compared with the negligence of the plaintiff. Black v. Bennett, 335 Mich. 197, 55 N.W.2d 795 (1952), Wieczorek v. Merskin, 308 Mich. 145, 13 N.W.2d 239 (1944), Mogill v. Resnick, 263 Mich. 103, 248 N.W. 562 (1933), Grabowski v. Seyler, 261 Mich. 473, 246 N.W. 189 (1933).

Subsequent negligence, on the other hand, provides that where two parties are negligent, and the risk of injury is imminent, and one party is in a position to avoid the injury while the other is not, the party who has the 'last clear chance' to avoid the injury has a duty to do so, the breach of which will give rise to his liability in negligence. Krouse v. Southern Michigan R. Co., 215 Mich. 139, 183 N.W. 768 (1921), see James, Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704 (1938), and MacIntyre, The Rationale of Last Clear Chance, 53 Harv.L.Rev. 1225 (1940). The doctrine is inapplicable where each party had an equal opportunity to avoid the injury up to the instant preceding the injury, because then it cannot be said that either party had the 'last clear chance' to avoid the injury. Thus, it is said, subsequent negligence does not apply where the negligence of [64 MICHAPP 476] the parties is concurrent, because the plaintiff's concurrent negligence will constitute contributory negligence and thus bar his recovery. Schmid v. Morehead, 333 Mich. 611, 53 N.W.2d 570 (1952), Davidson v. Detroit, 307 Mich. 420, 12 N.W.2d 413 (1943), Routt v. Berridge, 294 Mich. 666, 293 N.W. 900 (1940).

Much of the controversy in the cases turns on the question of what kinds of negligence should be said to continue, and when it can be said to cease to operate as the proximate cause of the injury. If the court finds the negligence to continue to operate, this will amount to a finding of concurrent negligence. If, on the other hand, the court finds the negligence of the plaintiff had ceased to operate as a proximate cause, the subsequent negligence of defendant becomes an issue. Conant v. Bosworth, 332 Mich. 51, 50 N.W.2d 842 (1952), Gallagher v. Walter, 299 Mich. 69, 299 N.W. 811 (1941), Howell v. Hakes, 251 Mich. 372, 232 N.W. 216 (1930).

The Michigan Supreme Court has laid down the elements of subsequent negligence. The elements are as follows:

1. Plaintiff's negligence has put him in a position of danger.

2. Plaintiff's negligence has ceased to operate as the proximate cause of the accident.

3. Defendant discovered plaintiff's peril or should by the exercise of ordinary care have discovered plaintiff's peril.

4. Defendant by use of the means at hand had time to avert the threatened injury.

Davidson v. Detroit, 307 Mich. 420, 430, 12 N.W.2d 413, 416--417 (1943).

In the instant case no one disputes that the negligence of plaintiff pursuant to the collision with Turpin had ceased to operate when her vehicle[64 MICHAPP 477] came to rest on M--59. The trial court, however, found the plaintiff's act of remaining in the vehicle, rather than removing herself from the zone of danger, constituted negligence which continued to operate up to the moment of impact and therefore found subsequent negligence not to be an issue in the case; hence, his refusal to charge the jury thereon. We respectfully disagree with the trial judge.

The record contains evidence that the plaintiff's door was jammed, that she attempted to get it open, and asked for help in so doing. A question of fact is presented, therefore, as to whether plaintiff was, in truth, unable to extricate herself from her predicament. If the trier of fact answers this question in the negative, there can be no concurrent negligence and the jury should be charged on subsequent negligence. The issue should have been submitted to the jury.

Further, if the trier of fact determines that the plaintiff could have exited from her vehicle, the next question is whether a failure to do so constitutes negligence. Plaintiff was shaken; passersby were directing traffic with flashlights; she was advised by one who had taken charge of the situation to stay in the car. Whether a reasonably prudent person under the same or similar circumstances would have chosen to remain in the car or exited to seek shelter in a nearby vehicle is a question of fact for the jury....