Nabozny v. Hamil

• Decision Date: 01 December 1960
• Docket Number: No. 31,31
• Citation: 106 N.W.2d 230,361 Mich. 544
• Parties: Theodore A. NABOZNY, Plaintiff and Appellee, v. Robert HAMIL and Betty Hamil, jointly and severally, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 230

106 N.W.2d 230

361 Mich. 544

Theodore A. NABOZNY, Plaintiff and Appellee, v. Robert HAMIL and Betty Hamil, jointly and severally,

Defendants and Appellants.

No. 31.

Supreme Court of Michigan.

Dec. 1, 1960.

Earl C. Opperthauser, Detroit, for plaintiff and appellee.

Howlett, Hartman & Beier, Pontiac, for defendants and appellants.

Before the Entire Bench.

BLACK, Justice (dissenting).

This Court in recent years ¹ has reaffirmed devotion to Mr. Justice Cooley's enduring aphorism that, 'As a general rule, it cannot be doubted that the question of negligence is a question of fact and not of law.' Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 118. The question of negligence in the case before us comes within that rule, and so I vote to reverse this judgment for plaintiff, same having been entered upon determination by the court that the defendant driver was guilty of actionable negligence.

The stated general rule was considered at length by Mr. Justice Cooley in his timelessly dependable workbook of torts. Quoted as follows, from 3 Cooley on Torts, 4th ed., sec. 481, p. 389, is that portion of the text which gives the author's principal reasons for the the view that the defendant's negligence (as claimed by the plaintiff) is usually a question for the jury:

'The question will often be, does the defendant appear to have exercised the degree of care which a reasonable man would be expected to exercise under like circumstances? To such a question a man of exceeding cautious temperament might respond that he did not; another more sanguine and bold might say he did; and by the side of one or the other of these would the rest of the community range themselves, each person largely affected by temperament and perhaps by his own experience, but firmly maintaining that rule to be a proper one which now, on a retrospective examination of the facts, seems to his to be such.

'If the judge, in such a case, were to pass upon negligence as a question of law, he must, in doing so, be endeavoring to enforce a rule of a variable nature, which must take its final coloring from the experience, training, and temperament of the judge himself; a rule which his predecessors might not have accepted, and which his successor may reject, and upon which a court of review may reverse his action, not because the facts are differently regarded, but because judges are men and men are different.'

True it is that judges 'are different,' and true it has always been that a jury ordinarily is better qualified than one man to judge, upon the presented evidence, whether a want of due care has been shown. Turning (again as in Barron and Thomas, supra) to the first and now memorable instances when the Federal Supreme Court determined that the precepts of Cooley--recorded in Van Steinburg--should be followed in the courts of the United States (Sioux City & Pacific R. Co. v. Stout, 17 Wall. 657, 84 U.S. 657, 21 L.Ed. 745; Grand Trunk Railway Co. of Canada v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485), we find complete uniformity of viewpoint that the trial judge has no right to instruct that a party at bar has been shown guilty of negligence unless the judge is able to say that his opinion is also the opinion that all reasonable men would entertain of the question. ² Stout says (84 U.S. at pages 663, 664):

'It is true, in many cases, that where the facts are undisputed the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts come in question rather than where deductions or inferences are to be made from the facts. If a deed be given in evidence, a contract proven, or its breach testified to, the existence of such deed, contract, or breach, there being nothing in derogation of the evidence, is no doubt to be ruled as a question of law. In some cases, too, the necessary inference from the proof is so certain that it may be ruled as a question of law. If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives So if a coach driver intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or an axle, which could not have been anticipated, an injury occurred, it might be ruled as a question of law that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. it is in relation to these intermediate cases that the opposite rule prevails. Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed ; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.' (Emphasis supplied by the present writer.)

In the case before us, as we shall presently see, the Court is called upon to apply its judgment to the question of want of due care of a motorist while using a modern appliance of motordom, the automatic transmission. Are judges supposed to know more about the proper manner of performing one's common law duty in these circumstances than are jurors? I find direct answer in Ashman v. Flint & P.M. Railroad Co., 90 Mich. 567, 51 N.W. 645. There the question was one of want of care of a railroad switchman whose act of pulling a 'pin,' with knowledge that a nearby 'frog' (in the track) was open and unblocked, resulted in personal injury and suit against his employer. The Court said (90 Mich. at pages 574, 575, 51 N.W. at page 647):

'A jury of 12 men, drawn from the body of the people, and from all the avocations of life, would be more likely to have among its members men familiar with switching or braking upon railroads than would the bench, composed of men whose lives have generally been devoted to one subject,--the study and practice of law; and among these 12 men might quite frequently be found men who had been switchmen or brakemen. When the inquiry arises in any case what an ordinarily prudent man would have done under given circumstances, the judgment of twelve men is obviously better than the judgment of one, as the experience in life of twelve men must have been collectively, more varied and extensive than that of any one man, however learned in the law he may be; and how men ordinarily act in the presence of danger, or to avoid it, can be better settled by twelve men than one man, because their united experiences are brought to bear upon the question, and each has the benefit of the experience of all of them in arriving at a fair, true, and just conclusion.'

I have examined the testimonial facts, shown in the case before us, with the foregoing rules in mind. Such facts are properly stated, with favor due to the defendant driver, in the brief of her counsel as follows:

'On Octovber 18, 1957, the defendant, Betty Hamil, driving her husband's 1956 model Buick automobile with automatic transmission, parked on Nine Mile road in the city of Oak Park immediately behind a Ward Baking Company truck occupied and operated by the plaintiff. Mrs. Hamil's small son got out of the car on the right side to go to a barber shop and failed to close the car door. Mrs. Hamil, as was her custom when making a short stop, left the transmission in the 'Drive' position and held her foot on the brake. As she reached across to close the right hand car door, her foot slipped off the brake pedal and engaged the accelerator causing the car to go forward into collision with the rear end of the truck.'

To these facts I would add that the collision resulted in serious injury to plaintiff, attested by a damage-verdict and judgment in his favor for $30,000.

Do we have a right to say that Mrs. Hamil's conduct, giving it the most favorable construction it will bear under her testimony ³, was such that all men and women of reasonable minds would conclude that she was negligent? Would not some reasonable men and women disagree upon the answer' Would not the answer of reasonable men and women depend in whole or in part upon the knowledge or want of knowledge they might have of driving modern automobiles; upon their experience or want of experience with a similarly unintentional application of engine power and, generally, upon their own habits of comparative caution or inattention in like circumstances?

Suppose, by way of illustrative hypothesis, that Mrs. Hamil's little 5-year old (remaining temporarily in the car after his mother brought it to a stop at the curb) had suddenly, by accident or childish design, depressed the accelerator with similar tragic result. Would we be as...