Secrist v. City of Detroit

• Decision Date: 06 October 1941
• Docket Number: April Term 1941.,No. 60,60
• Citation: 300 N.W. 137,299 Mich. 393
• Parties: SECRIST v. CITY OF DETROIT.
• Court: Michigan Supreme Court

299 Mich. 393

300 N.W. 137

SECRIST

v.CITY OF DETROIT.

No. 60, April Term 1941.

Supreme Court of Michigan.

Oct. 6, 1941.

Action by Bernard E. Secrist against City of Detroit, a municipal corporation, Department of Street Railways, for injuries sustained when street car operated by defendant collided with automobile operated by plaintiff. From a judgment for plaintiff for $2,000, the defendant appeals.

Judgment affirmed.

BUTZEL, NORTH, and WIEST, JJ., dissenting.

Appeal from Circuit Court, Wayne County; Adolph F. Marschner, judge.

Argued before the Entire Bench.

Rodney Baxter and Wm. J. McBrearty, both of Detroit, for defendant and appellant.

Stanley C. Barker and Vandeveer & Haggerty, all of Detroit (Fred L. Vandeveer, of Detroit, of counsel), for plaintiff and appellee.

BUSHNELL, Justice.

On January 12, 1937, at about 1:45 p.m., plaintiff Secrist was driving south on Fourteenth street in the city of Detroit. It is not clear whether Secrist was following a southbound street car and stopped behind it to make a turn, or whether he overtook the street car and stopped on the right of the southbound rails to allow it to pass. Defendant claims that plaintiff attemptedto make a U-turn approximately 100 feet north of Ash street, either as the southbound street car was entering or as it was leaving a safety zone at this corner. In any event, as plaintiff was making the turn a northbound street car struck the right side of his automobile, injuring him and the other occupants.

Plaintiff and his wife, son, aunt and niece were on their way to visit at the home of their friends, the Masons, located on the east side of Fourteenth street, a short distance north of Ash street. Mrs. Secrist testified that her husband had on former occasions entered the driveway located at the south side of the Mason home, and at other times he had parked in front of their home. The jury could have determined that plaintiff was intending either to go into the driveway or to park in front of the Mason home.

Plaintiff claims that the testimony shows that when he was about 100 feet north of the north line of Ash street he stopped his automobile just to the west or right of the southbound street car track on Fourteenth street to allow a southbound street car to pass. About this time a northbound street car was entering the safety zone just south of Ash about 200 feet away. After the southbound street car had passed him, plaintiff turned to his left, crossed the southbound track, and drove slowly onto the northbound car track. At this time an automobile proceeding north between the northbound car track and the east curb of Fourteenth, and being driven at a speed greater than that of the northbound street car, passed through the intersection ahead of the street car. Plaintiff claims that the testimony further shows that he was trapped at this point because he could not back up due to the volume of traffic going south, nor could he go ahead because of the northbound automobile. While in this trapped position plaintiff claims he was struck so hard by the northbound street car that his automobile was shoved from 75 to 100 feet north of the point of impact. He maintains that the motorman of the north-bound car had a clear view of the situation and could have stopped the street car in time to avoid striking his automobile.

Defendant, on the other hand, asserts that Secrist was making a ‘U-turn’ behind the southbound street car when the north-bound street car was within 25 to 50 feet from him. Defendant insists that plaintiff was not trapped on the northbound car track but, on the contrary, that he negligently drove out from behind the south-bound street car into the path of the oncoming northbound street car. Defendant argues that its motorman did not have sufficient time to avoid a collision.

After the denial of defendant's motions for mistrial and for a directed verdict, the case was submitted to the jury, which returned a verdict for plaintiff in the sum of $2,000. A motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was made by the defendant and denied.

Appellant argues that the trial court erred in not granting its motion for a mistrial and in not directing a verdict for defendant because of plaintiff's contributory negligence and its freedom from negligence. Appellant also insists that the court erred in refusing to enter a judgment non obstante veredicto and that the verdict of the jury is against the great weight of the evidence.

In support of its claim that the court erred in failing to declare a mistrial, defendant relies on the following incidents: One of plaintiff's witnesses, Mrs. Edith Hawk, was cross-examined about a signed statement which defendant claimed she had given to one of its investigators shortly after the accident. She denied that she had written on this statement the words: ‘The above is all I know about this accident. Mrs. Edith Hawk.’ Counsel then asked the witness to write the same sentence and sign her name. Thereupon she began to cry and, when questioned about her nervousness, said her husband had ‘died about the same time.’ The court excused the jury and discussed the incident with counsel. Defendant's counsel said: ‘I don't ask for a mistrial * * * I am not going to question the witness any further.’ After the jurors returned, the court questioned them as to the effect of the incident and, after receiving their assents that they could proceed fairly with the trial, the court cautioned them to dismiss the matter from their minds.

Although defendant declined to request a mistrial because of this incident, he claims that, when this occurrence is considered with the following incident, a mistrial should have been ordered. On the same day plaintiff's wife was cross-examined and, when asked by defendant's counsel whether a statement she made to one of its investigators was correct, she replied: ‘But they told my husband that they was going to settle, and that they only needed one more thing, and they was going to settle it.’ Defendant argues that this inadmissible testimony of an offer of compromise in conjunction with the former incident so prejudiced the minds of the jurors that a fair trial was made impossible. In its brief defendant states that Mrs. Secrist's answer was ‘not even approximately responsive to the question asked the witness.’ However, the trial court deemed it somewhat responsive.

No hard and fast rule can be laid down as to when a voluntary statement from a witness is of such a nature as to preclude the possibility of a fair trial by improperly influencing a jury. Each statement must be considered in the light of its attending circumstances and the question propounded. While offers of negotiations and compromise cannot be used as an admission of liability, a voluntary statement to this effect is not always reversible error.

In the instant trial, both incidents occurred on the second day and the case was not submitted to the jury until seven days later, and neither counsel referred to the matter again. The trial court did not abuse its discretion in denying defendant's motion for a mistrial. Jolman v. Alberts, 192 Mich. 365, 158 N.W. 886;Burnett v. King, 252 Mich. 189, 233 N.W. 221;Greene v. Richer, 278 Mich. 1, 270 N.W. 194, and Lucy v. Dowd, 285 Mich. 530, 281 N.W. 314.

Our study of the testimony requires the conclusion that there were disputed questions of facts both as to the claim of plaintiff's contributory negligence and defendant's subsequent negligence. The trial court, therefore, properly submitted these questions to the jury and there is testimony to support its verdict. This verdict is not contrary to the great weight of the evidence. King v. Grand Rapids Railway Co., 176 Mich. 645, 143 N.W. 36;Huff v. Michigan United Traction Co., 186 Mich. 88, 152 N.W. 936;Whitman v. Collin, 196 Mich. 540, 162 N.W. 950, and Golob v. Detroit United Railway, 228 Mich. 201, 199 N.W. 639.

The judgment entered upon the verdict is affirmed, with costs to appellee.

SHARPE C. J., and BOYLES and CHADLER, JJ., concurred with BUSHNELL, J.

BUTZEL, Justice (dissenting).

In addition to the facts set forth in Justice BUSHNELL'S opinion, the testimony of the motorman of the northbound street car shows that when he first saw plaintiff bring his automobile across the northbound tracks he believed that plaintiff would cross over them to the east side of the street. There was nothing to indicate to him that plaintiff would stand still on the tracks of the oncoming street car. When prolonged motionlessness on the tracks at length brought home to the motorman plaintiff's intention not to move off the tracks, he made every conceivable effort to stop the street car but was then too late. The undisputed testimony shows that the motorman threw on the emergency brakes, pulled his reverse lever and opened the sand box so as to drop sand on the tracks, that these steps diminished the force of, but did not forestall, the collision. The street car was not being run recklessly or at an unlawful rate of speed. We find no negligence on the part of defendant. Even if it were chargeable with any negligence, plaintiff would be guilty of contributory negligence in driving into the pathway of the oncoming street car. Nor can defendant be charged with subsequent negligence, because its motorman had no chance to avoid the accident. The street car aims to go on a scheduled time. It carries a large number of passengers. It cannot be veered off to the side as it can only proceed in a straight direction on the tracks. The motorman may assume that a person proceeding across the tracks will not stop on the tracks. By the time his reaction shows this is not to be the case, it takes the driver some time to bring the heavy street car, weighing many tons, to a stop. Under most favorable conditions, the testimony shows that this can be done within 40 feet when a street car is going 20 miles an hour but this...