Price v. Manistique Area Public Schools

• Decision Date: 25 June 1974
• Docket Number: Docket No. 17232,No. 3,3
• Citation: Price v. Manistique Area Public Schools, 220 N.W.2d 325, 54 Mich.App. 127 (Mich. App. 1974)
• Parties: Richard W. PRICE, Sr., Administrator of the Estate of Richard W. Price, Jr., Deceased, Plaintiff-Appellant, v. MANISTIQUE AREA PUBLIC SCHOOLS and Edwin H. Johnson, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 325

220 N.W.2d 325

54 Mich.App. 127

Richard W. PRICE, Sr., Administrator of the Estate of Richard W. Price, Jr., Deceased, Plaintiff-Appellant, v.MANISTIQUE AREA PUBLIC SCHOOLS and Edwin H. JohnsonDefendants-Appellees.

Docket No. 17232.

Court of Appeals of Michigan, Division No. 3.

June 25, 1974.

Released for Publication July 31, 1974.

Nino E. Green by Frederick C. Weisse, Escanaba, for plaintiff-appellant.

Arthur A. Neiman, Hansley, Neiman, Peterson & Beauchamp, Escanaba, for defendants-appellees.

Before ALLEN, P.J., and J. H. GILLS and QUINN, JJ.

ALLEN, Presiding Judge.

Plaintiff brought action for wrongful death, M.C.L.A. 600.2922;M.S.A. 27A.2922, arising when plaintiff's six-year-old son was struck by a vehicle driven by Frank Carpenter.Originally a party to this suit, Carpenter died before trial, and his wife, who as administratrix of his estate had been substituted as a party, successfully obtained an accelerated judgment on the grounds that she was served with process when she was no longer administratrix of the estate and that plaintiff's claim was filed more than three months after her husband's estate had been closed.M.C.L.A. 701.19;M.S.A. 27.3178(19), M.C.L.A. 704.56;M.S.A. 27.3178(307)andGCR 1963, 116.1(1) and (5).The jury rendered its verdict in favor of defendants, and plaintiff has appealed.

The fatality occurred July 31, 1968, when plaintiff's decedent was crossing US--2, a highway located in Mueller Township in Schoolcraft County.Prior to the accident, Richard, Jr., a participant in the Doyle School Head Start program, was returning home in a Manistique school bus driven by defendantEdwin H. Johnson.Upon stopping at the Price residence, Johnson was advised by Gordon Letson, Richard, Jr.'s, ten-year-old half-brother and a fellow passenger on the bus, that the two boys were to be taken to their grandmother's home.

Decedent, his older brother, and Jay and Douglas Tuttle were the last children aboard defendant's bus to be taken to their homes.Decedent's grandmother lived across US--2 from the Tuttle residence.When Johnson reached the Tuttle home, he pulled the bus onto the shoulder to let the children off the bus.Gordon told Johnson that he was going to his grandmother's mailbox, located some 90 feet in front of the bus on the Tuttle side of US--2.Johnson told Gordon to stand near the Tuttle driveway and wait until traffic cleared to cross the road.Johnson advised Gordon not to go to the mailbox.

Johnson then resumed his travel down US--2.He testified that as the bus proceeded down the road, he watched the children through his rear view mirrors, and said that the children remained standing near the Tuttle driveway.

Gordon Letson then proceeded to his grandmother's mailbox, leaving his six-year-old half-brother standing near the Tuttle's mailbox.As he approached his grandmother's mailbox, Gordon heard a 'thud', and turned and saw his half-brother'flying across the road'.

A major issue presented at trial was the length of time between the departure of the children from the school bus and the accident.Gordon testified that he was able to see the school bus when it was approximately one-half mile from the Tuttle residence at the time of the accident.Mrs. Tuttle testified that the children were usually brought home at 11:45 a.m. and that the bus was on time on the day in question.She testified that the accident occurred five to ten minutes after the bus had delivered the children, but later stated that the accident occurred 'just a few minutes' thereafter.However, Mrs. Tuttle testified that she had called the police immediately after the accident.According to the testimony of a state police trooper, the police received a telephone report of the accident at 1:04 p.m., approximately 1 1/4 hours after the bus's 'usual' arrival time.Alice Fitzpatrick, a cook at the Doyle School, traveling in a vehicle in the direction toward the Tuttle residence on US--2, said that she saw the school bus approximately three-quarters of a mile from the Tuttle residence.When she passed that residence, there was no sign of an accident.

At the close of proofs, plaintiff moved for a directed verdict on the issue of defendants' liability.The trial court denied the motion for a directed verdict, stating that the question of defendants' liability was one of fact for the jury.The jury then returned a verdict of no cause of action against plaintiff.

The State Board of Education has the 'powers and duties' to regulate 'school bus transportation'.M.C.L.A. 388.1010(c);M.S.A. 15.1023(10)(c).It may 'prescribe rules and regulations' to implement its powers and duties.The Michigan Pupil Transportation Handbook BulletinNo. 431, published August, 1965, contained the following two provisions which plaintiff argues established a duty for school bus drivers:

'4.To survive the activities of children leaving the bus until they have crossed the highway in safety or are otherwise not subject to hazards.

'5.To have children pass in front of bus when leaving bus and crossing highway.'

It is plaintiff's contention that defendant violated those provisions, and that such violation rendered defendant negligent as a matter of law.

While violation of a statute is 'negligence per se', it has been held that 'violations of duties imposed by such rules and regulations are evidence of negligence'.Douglas v. Edgewater Park Co., 369 Mich. 320, 328, 119 N.W.2d 567, 571(1963).Douglas said '(t)he rigidity of the negligence Per se doctrine should not be extended to administrative rules and regulations'.369 Mich. 320, 328, 119 N.W.2d 567, 571.In the instant case, the trial court instructed the jury that defendant had the duty 'to use ordinary care for the safety of plaintiff's decedent' and further instructed the jury that the provisions of the above handbook could 'be considered * * * together with all the other evidence in deciding whether defendant was negligent'.The trial court was correct, and we are unpersuaded by plaintiff's argument that defendant was negligent as a matter of law.We also note that no objection was made to the trial court's instructions, and in such a situation the issue is usually held to have not been preserved for appellate review.Hunt v. Deming, 375 Mich. 581, 584--585, 134 N.W.2d 662(1965), GCR 1963, 516.2.

Plaintiff also argues that under the common law defendant bus driver was negligent in leaving plaintiff's six-year-old decedent at the edge of US--2 accompanied only by his ten-year-old half-brother and two playmates, knowing that the child would have to cross the highway to reach his destination.In view of the evidence presented in this case, we find that reasonable men could differ on the question of whether or not defendant was indeed negligent as alleged by plaintiff.Accordingly, the question was properly one left for the jury's determination.SeeDavis v. Thornton, 384 Mich. 138, 142--146, 180 N.W.2d 11(1970).

Assuming, Arguendo, that defendant owed a legal duty to plaintiff's decedent, and that defendant breached that duty, plaintiff still had to prove that defendant's breach was a proximate cause of plaintiff's damages.Generally, the question of whether one's act or breach of a duty is a proximate cause is a question for the jury to determine.Davis v. Thornton, Supra.Defendants argue that even if they were negligent, an intervening event occurred which could not have been foreseen by defendant bus driver as a matter of law.Thus, we must determine whether the intervening cause, the striking of plaintiff's decedent by the Carpenter vehicle, was so reasonably foreseeable by the school bus driver that a jury could not come to any other conclusion than to find the bus driver negligent.An intervening cause will not '(sever) whatever connection there may be between the plaintiff's injuries and the defendant's negligence' if that intervening event 'was reasonably foreseeable'.384 Mich. 138, 148, 180 N.W.2d 11, 16.Davis v. Thornton, Supra, approvingly referred to 2 Restatement Torts, § 447, [54 Mich.App. 133] p. 1196. 384 Mich. 138, 148--149, 180 N.W.2d 11.Currently found in 2 Restatement Torts2d § 447, p. 478, the applicable principle is as follows:

'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

'(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

'(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

'(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.'

Johnston v. Harris, 387 Mich. 569, 574, 198 N.W.2d 409(1972), quoting from2 Restatement Torts2d, § 449, p. 482, noted:

'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.'

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