Schattilly v. Yonker, 37

• Decision Date: 28 February 1957
• Docket Number: No. 37,37
• Parties: Carl SCHATTILLY, a minor, by his Next Friend, Pearl M. Schattilly, Plaintiff and Appellant, v. Catherine YONKER and Ella Yonker, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 343

81 N.W.2d 343

347 Mich. 660

Carl SCHATTILLY, a minor, by his Next Friend, Pearl M Schattilly, Plaintiff and Appellant, v. Catherine YONKER and Ella Yonker, Defendants and Appellees.

No. 37.

Supreme Court of Michigan.

Feb. 28, 1957.

van Benschoten & van Benschoten, Saginaw, for plaintiff and appellant.

Heilman & Purcell, Saginaw, for defendants and appellees.

Before the Entire Bench, except BOYLES, J.

EDWARDS, Justice.

Herein a victim of the new age of automation seeks recovery from 2 women whom he charges with negligent employment of one of its wonders.

A 17-year-old boy, through his mother, brought suit in Bay county against the driver and passenger of an automobile which struck and injured him. The defendants were a married woman and her mother-in-law, who had driven an automatic shift car into the entrance of an automatic wash rack where plaintiff was employed at washing cars. The younger woman brought the car to a stop, and got out of it. As the older woman was seeking to get out, the car unexpectedly leaped forward pinning plaintiff against a steel beam, inflicting serious fractures of his left leg.

On trial, the jury in this case brought in a verdict of no cause for action in favor of both defendants.

Plaintiff's appeal is based primarily upon his claim that the trial judge committed prejudicial error in his charge to the jury.

The circumstances which produced this litigation included the following:

On March 15, 1952, Carl Schattilly (whom we will refer to as plaintiff, although the suit was brought by his mother) was working at Minit Deluxe Car Wash in Bay City, Michigan. At about 2:30 p. m. defendants, who had been waiting in line, pulled up to the entrance of the wash rack in a 1951 Ford equipped with 'Fordomatic' drive, i. e., an automatic transmission which does not require a clutch in order to move the car from a stop to high-speed operation. A gearselection indicator was mounted atop the steering post and contained the following designations, from left to right: 'P' (park), 'R' (reverse), 'N' (neutral), 'D' (drive), and 'L' (low).

As defendants stopped, some of the car wash crew had already begun cleaning the tires with hoses. One Gene Bennett, who was stationed at this point for the purpose of sweeping the driver's side of the front- and back-seat floors, opened the driver's door. Defendant Catherine Yonker alighted and stepped a few steps away from the car. She testified she had left the car shift lever in the 'park' position.

Defendant Ella Yonker, Catherine's mother-in-law, then 67 years of age and wearing a heavy coat and weighing about 175 pounds, was riding in the passenger side of the front seat. She testified that she wanted to get out on her own side, but that Gene Bennett, who was holding the door, motioned to her to get out on the driver's side, telling her to hurry up. Bennett denied any such motions or instructions. An apparent reason for not getting out on the righthand side was that the men were already playing the hoses on that side of the car.

Plaintiff was standing in front of the right fender of the car, about to wash it. As Ella Yonker was pulling herself under the steering wheel the car lurched forward and to the right, pinning plaintiff to an I-beam and injuring him. Ella Yonker was uncertain as to what she had grabbed for assistance in getting across the seat, but Gene Bennett testified that it was the steering wheel and definitely not the gear shift. There was no direct testimony as to whether Ella Yonker's coat caught the shift handle. There was no dispute at trial but that at the time the car lurched forward and struck plaintiff, Ella Yonker was the sole person in the automobile.

An expert witness testified that a 1951 Ford with 'Fordomatic' drive could not move with the gear shift in 'park.' He also testified that when in gear the car could 'creep,' but that the slightest incline, a stone or pebble, or even a pencil placed in front of a wheel would stop the car's motion--unless somebody pushed on the accelerator, in which instance it would move forward.

There were no signs in the car wash directing either drivers or passengers to do or not to do anything. Catherine Yonker testified that she knew she should get out of her car because she saw others in front of her doing so. There was testimony concerning a great deal of noise and hurry in the operation of the wash rack.

The trial judge properly considered, on the basis of the testimony referred to above, that issues of fact had been raised pertaining to the alleged negligence of the defendants, whether or not such negligence, if any, was the proximate cause of plaintiff's injury, and the question of plaintiff's freedom from contributory negligence.

Prior to instructing the jury the trial judge was confronted by written requests for detailed instructions from both plaintiff and defendants. On review by this Court, it appears that much of plaintiff's requests to charge consisted of a review of the testimony, phrased in a fashion distinctly favorable to the plaintiff. There could be no error in the trial judge declining to accept plaintiff's requested instructions, in their exact wording, so long as in his own words he set forth plaintiff's theory of the case (in the event there was testimony to support it) and instructed the jury on the law applicable thereto.

In this regard plaintiff requested the following instruction 'Carl Schattilly claims that the negligence of Catherine Yonker lies in the following facts which he claims to be true:

'1. That Catherine Yonker drove the car into the Minit Wash where she stopped it and got out, knowingly leaving the engine running.

'2. That because of the noise, no one else could detect that the engine was running, including her passenger, Ella Yonker.

'3. That she did not set the emergency brake on the car before leaving it.

'4. That she left the car in a 'drive' position so that anyone touching the accelerator would propel the car forward.

'5. That she knew her mother-in-law knew nothing about the operation of a car.

'6. That she watched her mother-in-law slide across from the passenger side of the car to the driver's side of the car in an attempt to get out on the driver's side while the car was left in this condition which was unknown to the mother-in-law.

'7. That she did not warn the mother-in-law, under the circumstances, to keep away from the operating mechanisms of the car.

'Carl Schattilly further claims that Ella Yonker also was a contributing cause of this accident in that she carelessly and negligently stepped on the accelerator of the automobile in attempting to get out of the car on the passenger side, although she did not ascertain whether or not the car was running or was in gear.'

The trial judge declined to make use of the above, or any paraphrase thereof. From the pleadings and the record and plaintiff's requests to charge, it is apparent that plaintiff's theory of the happening of this accident was that the defendant Ella Yonker stepped on the accelerator pedal as she was undertaking to get out of this automobile via the driver's door, and that this action, coupled with the fact that the car was in gear and the brake not set, constituted negligence which was the proximate cause of plaintiff's injuries.

There is ample evidence in this record from which the jury could have found facts to sustain plaintiff's theory.

American Jurisprudence, on the point in question, says:

'Each party to an action is entitled to have the jury instructed with reference to his theory of the case, where such theory is supported by competent evidence and the instruction is properly requested, and this although such theory may be controverted by evidence of the opposing party.' 53 Am.Jur., Trial, § 626, p. 487.

See, also, 38 Am.Jur., Negligence, § 369; Webber v. Park Auto Transportation Co., 138 Wash. 325, 244 P. 718, 47 A.L.R. 590.

No doubt the omission was inadvertent, but at no point in this lengthy charge is plaintiff's basic theory ever referred to. We believe it was reversible error for the trial court to ignore plaintiff's requests to charge upon the question of whether or not one of the defendants stepped on the accelerator while the automobile in question was running and in gear. Sword v. Keith, 31 Mich. 247; Poole v. Consolidated Street Railway Co., 100 Mich. 379, 59 N.W. 390, 25 L.R.A. 744; Harnau v. Haight, 189 Mich. 600, 155 N.W. 563: See, also, C.L.1948, § 618.58, Stat.Ann. § 27.1038; Mich. Court Rule No. 37, § 9 (1945).

Altogether, the trial judge gave 2 paragraphs of plaintiff's request to charge. He then turned to defendants' requests to charge and gave 9 pages of them almost verbatim out of 9 3/4 pages submitted. No suggestion is intended that error necessarily follows any such arithmetic contrast; but in this instance, as will appear, we consider the parties' requests to have been at least equally self-serving.

Much of defendants' requested instructions, as given by the court, pertained to a review of defendants' theory that this accident resulted from the negligence of the Minit Deluxe Car Wash either in controlling or failing to control the operation of...