Shaw v. Bashore
| Decision Date | 15 April 1958 |
| Docket Number | No. 27,27 |
| Citation | 90 N.W.2d 688,353 Mich. 31 |
| Parties | Anna SHAW, Plaintiff and Appellant, v. John BASHORE, Jr., Defendant and appellee. |
| Court | Michigan Supreme Court |
John L. Leighton and Joseph Lavey, Lansing, for plaintiff and appellant. Vernon J. Andrews, Lansing, of counsel.
Jennings, Fraser, Parsons & Trebilcock, Lansing, for defendant and appellee. Everett R. Trebilcock, Lansing, of counsel.
Before the Entire Bench.
This appeal grows out of a driver-pedestrian accident on a public street not at an intersection during which the plaintiff pedestrian was grievously injured. At the close of the plaintiff's proofs the defendant moved for a directed verdict, which was granted and this appeal has resulted.
At the trial the plaintiff was unable to testify to the circumstances surrounding the accident, claiming that as a result of her injuries she had suffered from amnesia, or loss of memory, a lapse which she alleged and testified covered an interval immediately preceding the accident and lasting until she woke up in the hospital the next day, Christmas. She testified that she was 51 years of age; that she had worked around her home that day; that she and her husband had expected company that night and she had made spaghetti sauce and three kinds of candy; that her husband got home from work about 4:30 that afternoon; that they went shopping for groceries and snacks for their expected company that night and returned home shortly after 5:00; that they relaxed and read the newspapers till about twenty minutes to six when they left to walk to the Moose Lodge (a block and a half away), arriving shortly before six, where, as planned, they met their son and some friends; that during her stay at the lodge hall she drank two whiskey highballs in soda; that when she and her husband left at about 6:50 her son presented her with a pint of whiskey, which she carried with her; that she and her husband parted at a drug store and she went on ahead on her way home to prepare their supper.
She further testified that she remembered nothing after passing the Odd Fellows Hall (near the scene of the accident and somewhat north of a point kitty corner from her apartment across the street). 'My memory is cut off at the point where I remember walking past the Odd Fellows Hall,' she testified. 'I have no further recollection.'
An expert witness, Dr. Clarence W. Muehlberger, chemist and toxicologist for the Michigan department of health, testified that he had analyzed a blood sample taken from the defendant and found that it contained .17 percent alcohol by weight. He further testified that in his opinion one whose blood sample showed .15 percent alcohol or more was 'definitely under the influence.' He further testified that these tests and figures were recognized among toxicologists and medical science in general, being accepted among others by the American Medical Association, the National Safety Council and the American Association of Chiefs of Police.
The same police officer who took the blood sample from defendant testified at the trial that he had first refreshed his recollection from a police report he had made the night of the accident and that he had discussed the accident with the defendant at the scene; that 'He stated he hadn't seen her until the accident, until the collision'; that he, the officer, had observed that there had been snow and the streets were slushy; that the visibility was very poor; that it was a hazy and misty night with some fog combined with mist. On the question of defendant's drinking he testified as follows:
The defendant was called for cross-examination under the statute. He testified among other things that he had had a few drinks earlier that afternoon, possibly four; that the weather was cold and there was snow and slush on the streets; that about 7:00 P.M. as he proceeded northerly up the street where the accident occurred his lights were on dim; that he did not feel the drinks he had taken except that he felt warmer; that he didn't recall whether his windshield wipers were on; that his lights showed up 'good' and that he could see about 50 feet ahead; that he did not see the plaintiff as he crossed the street intersection some 50 feet below the accident; that he did not recall looking at his speedometer.
He further testified as follows:
He further testified that at the impact he saw the plaintiff 'flying through the air' over the right side of his car, over the right hood by the sun visor; that his windshield was not fogged over; that his vision was normal; that after he stopped and went back he found the body of the plaintiff 'possibly 8 or 9 feet from the curb'; and, categorically, that he was driving 20 miles per hour--this despite his previous testimony that he did not recall watching his speedometer.
Upon examination by his own counsel he testified that when he first noticed the pedestrian she was moving from the east (direction of curbing) approximately 4 to 6 feet ahead of the car, and that he thought one step would carry her right directly to the right of his car, in front of it. 'She was moving and she was approximately one step to the right of the extreme right side of my car.' On re-direct examination he denied that he was drunk.
Plaintiff's doctor described her condition and state when he first saw her in the hospital as follows:
For a time amputation was seriously considered. She did not leave the hospital until the middle of the following February, during which time she had various operations, skin grafts and was in a pelvic cast. She had to return to the hospital for additional therapy under anesthesia. Her cast was not removed until April. The record discloses that apparently the only conversation she ever had with the police officer took place in the hospital the night of the accident. This last assumes some importance in view of later developments in this case, presently discussed.
As noted, at the close of plaintiff's proofs, defendant moved for and the court granted a motion for a directed verdict. Among other things the court then said: In reaching this conclusion the court appears to depend largely upon the testimony of Officer Bell that plaintiff told him the same night after the accident while in the hospital that 'Mrs. Shaw told me in her hospital room that she did not see the car.' (The court's opinion neglects to mention that this same officer also testified that the defendant told him he did not see the plaintiff until the impact.)
To ground the decision thus is to accept the testimony proffered by and on behalf of plaintiff in its worst not its best light. It is to utterly ignore the plaintiff's own testimony that she could not remember the circumstances of the accident. Manifestly if she was unable to remember the accident she was correct when and if she told the police officer that she didn't see the car. This record also shows that she was in a state of pain and 'considerable shock' upon her arrival at the hospital and when such conversation took place.
The court's view of the defendant's testimony is considerably more charitable:
'The testimony * * * of Mr. Bashore * * * was that * * * she stepped directly into the path of his automobile.
* * *
* * *
'The testimony of the only other witness, who is the driver, and he is a competent witness to testify, was that she stepped directly into the path of his car.
'The physical facts are such as would make this court find her guilty of contributory negligence; in other words she was not keeping a proper lookout for traffic when she attempted to cross that street, so I am going to order you to remain in your seats and give a verdict for the defendant of no cause for action.'
While it is perhaps not strictly necessary to our decision, we think it is not without some pertinence to quote what the court had to say in his ruling on the motion about the drinking of the defendant, of whose testimony it seemed disposed to take such a favorable view:
'The officer also testified that the man admitted having some drinks but after they took the blood test* and examined and questioned him at the police station he was allowed to go home.'
Presumably this charitable action by the officer late on Christmas Eve to a...
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