Ruotsala v. Holzhauer

• Decision Date: 24 June 1970
• Docket Number: Docket No. 7128,No. 3,3
• Citation: 180 N.W.2d 636,24 Mich.App. 571
• Parties: Lloyd W. RUOTSALA, Administrator of the Estate of Roger Lloyd Ruotsala, Deceased, Plaintiff-Appellant, v. Clarence Frank HOLZHAUER, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 636

180 N.W.2d 636

24 Mich.App. 571

Lloyd W. RUOTSALA, Administrator of the Estate of Roger Lloyd Ruotsala, Deceased, Plaintiff-Appellant, v. Clarence Frank HOLZHAUER, Defendant-Appellee.

Docket No. 7128.

Court of Appeals of Michigan, Division No. 3.

June 24, 1970.

Leave to Appeal Denied Aug. 25, 1970.

Released for Publication Oct. 29, 1970.

Gordon J. Jaaskelainen, Wisti, Jaaskelainen & Bourland, Hancock, for plaintiff-appellant.

Frederick N. Johnson, Dartland, Johnson & Kedzior, Houghton, for defendant-appellee.

Before FITZGERALD, P.J., and J. H. GILLIS and O'HARA, JJ. ^*

FITZGERALD, Presiding Justice.

The initial cause from which this appeal is now taken arose from an action for the wrongful death of Roger Lloyd Ruotsala, age 17. The boy was fatally injured when struck by an automobile operated by the defendant, Clarence Frank Holzhauer, at approximately 1:30 a.m. on June 29, 1966, near Nestoria, Michigan. Plaintiff Lloyd W. Ruotsala is the administrator of the deceased's estate.

The pertinent facts are as follows:

Defendant and three others were enroute to a convention in Hancock, Michigan, at the time of the accident. Decedent, intent upon visiting his grandparents, had been hitchhiking from his parents' home in Royal Oak to Hancock. The accident took place in the early morning hours while it was still dark on an isolated and unlighted curve on U.S. 41. Defendant did not stop his vehicle at the scene, but instead he continued on to the nearest State police post to report the incident. Two of the passengers present in the automobile were unable to testify to the events since they were asleep at the time of the accident. Mrs. Holzhauer stated that while she did not see the deceased nor realize what had taken place, she did feel an impact. The case was tried to a jury which rendered a verdict of no cause of action.

Plaintiff brings four allegations of error, all of which concern the trial court's refusal to instruct the jury as requested. The first matter we must decide is whether the jury should have been instructed that there is a presumption that the deceased was exercising due care for his own safety.

Under early Michigan case law, such an instruction was required, for the presumption of a deceased's due care needed more than slight evidence to rebut it. However, subsequent decisions have altered this rule. Under the facts of the present case, defendant, the only eye witness, saw the young man moments before the impact. This is sufficient to bring the case within the purview of Schillinger v. Wyman (1951), 331 Mich. 160, 49 N.W.2d 119, which ruled that if the defendant saw the deceased at all before the accident, his testimony as an eye witness is sufficient and the presumption of due care will not be indulged. See, also, Barry v. Elkin (1952), 332 Mich. 427, 52 N.W.2d 171. Plaintiff cites Hett v. Duffy (1956), 346 Mich. 456, 78 N.W.2d 284, in support of his argument, but misreads its holding. The aforementioned case did not change the law as enunciated in Schillinger, supra, and therefore we must hold that the trial court committed no error in its failure to instruct the jury that decedent was presumed to be exercising due care for his safety.

The second assignment of error concerns the trial court's failure to instruct the jury that the sudden emergency doctrine would operate in favor of the decedent as well as the defendant.

A review of applicable case law does not produce an automobile-pedestrian situation wherein a failure to give plaintiff's requested instruction concerning application of the sudden emergency doctrine was held to be reversible error. Plaintiff cites Smith v. Maticka (1943), 305 Mich. 32, 8 N.W.2d 900, to support his contentions. The facts are readily distinguished from the case at hand and we are not persuaded to adopt his reasoning. In Smith, supra, the emergency doctrine was applied in a two-car accident where the facts and circumstances surrounding the collision were known. At present, we are faced with a situation involving a deceased whose activities prior to the accident we know nothing about. The record is void of any facts from which an inference could be drawn that deceased was faced with an emergency situation and was forced into evasive actions to avoid being run down by defendant.

A certain latitude must be afforded the trial court in the area of jury instructions. The judge need not instruct the jury on theories which lack an evidentiary foundation. It is for these reasons that we find no error in failing to instruct the jury that the sudden emergency doctrine would apply to plaintiff's decedent.

Next we shall consider whether the jury should have been instructed on the doctrine of subsequent negligence. Defendant contends the facts were such that a jury could have found subsequent negligence. He argues that in light of these facts, he was entitled to an instruction on the doctrine of subsequent negligence as set forth in Papajesk v. Chesapeake & Ohio Railway...