St. John v. Nichols

• Citation: 331 Mich. 148,49 N.W.2d 113
• Decision Date: 05 September 1951
• Docket Number: No. 21,21
• Parties: ST. JOHN v. NICHOLS et ux.
• Court: Supreme Court of Michigan

Page 113

49 N.W.2d 113

331 Mich. 148

ST. JOHN v. NICHOLS et ux.

No. 21.

Supreme Court of Michigan.

Sept. 5, 1951.

Addison D. Connor, Detroit, for plaintiff and appellant.

Clark C. Coulter, Detroit (Victor H. Hampton, Detroit, of counsel), for defendants and appellees.

Before the Entire Bench.

DETHMERS, Justice.

This action was brought for the wrongful death of plaintiff's decedent. A jury returned a verdict for plaintiff. The trial court entered a judgment for defendants non obstante veredicto. Plaintiff appeals. Defendants have not cross-appealed but, in their brief, request a new trial in the event of reversal.

Defendants, husband and wife, were co-owners of an automobile, which the wife was driving and the husband occupying as a passenger. She stopped the car, as directed by a stop sign, for a through street. Decedent, a 16 year old boy, rode a bicycle through a gasoline station located at the corner immediately to defendants' right and proceeded toward defendants' car. Plaintiff claims that decedent rode the bicycle onto the crosswalk in front of defendants' standing car, whereupon it started forward abruptly, striking the bicycle broadside. The record is devoid of testimony for plaintiff concerning decedent's course of conduct and manner of riding the bicycle prior to the collision, leaving nothing from which it may be inferred that he saw defendants' car, maintained a proper lookout or conducted himself as an ordinary, careful and prudent person would have done under like circumstances. Testimony for the defense was that the car had started forward and almost reached the center of the intersecting street when decedent's bicycle suddently street when decedent's bicycle suddenly after having passed the car along its right side. Defendant driver admitted that she first saw the boy on the bicycle at the instant of the collision. When struck the boy was thrown onto the hood of the car. Defendant driver testified that she thereupon became very distraught, excited and upset and that she could not remember clearly what she did or what happened after the impact. Defendants entered the intersection with the intention of making--and they did make--a left turn. After the collision the car continued forward, increasing its speed gradually to about ten or fifteen miles per hour, with the boy bouncing up and down on the hood, for a distance claimed by plaintiff to be from 135 to 150 feet. In completing the left turn the car went up over the far curb and then back onto the pavement, during which time the boy fell, was dragged under the car for about 30 feet and then run over by a rear wheel. Within a couple of hours he died of resulting injuries. Plaintiff claims that decedent would not have been seriously injured had the car stopped promptly after the collision.

There was evidence sufficient to go to the jury on the question of whether defendant driver was guilty of negligence which was one of the proximate causes of the accident by reason of her admitted failure to observe decedent's approach. On the other hand, the learned trial judge was correct in holding that plaintiff had failed to sustain the burden of proving decedent's freedom from contributory negligence constituting a proximate cause of the collision. It was upon that ground that judgment non obstante veredicto for defendants was entered. That judgment should not be permitted to stand, however, because of the existence in this case of the question of defendants' subsequent negligence.

Plaintiff's declaration contained two counts. The first declared on defendants' negligence and decedent's freedom from contributory negligence. Count two incorporated all of count one, including allegations that defendants were guilty of gross negligence and wanton and reckless misconduct in failing to look out for decedent and in failing to stop the car within a reasonable distance after striking him and discovering him in a position of peril on the hood of the car. Count two also alleged that it had become defendants' duty to discover decedent in that position of peril and so to avoid injuring him, and that they had had the last clear chance to aviod such injury to him. The trial court declined, however, to submit the case to the jury on the last clear chance theory on the ground that, as a prerequisite thereto, plaintiff must allege and prove decedent's contributory negligence, or negligence on his part which placed him in the position of peril, citing Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398; Davidson v. City of Detroit, 307 Mich. 420, 12 N.W.2d 413; Morrison v. Hall, 314 Mich. 522, 22 N.W.2d 838, and Dulemba v. Tribble, 325 Mich. 143, 37 N.W.2d 894.

Plaintiff refused to plead or concede decedent's contributory negligence and contended for the right to go to the jury on the alternative theories that decedent was free from contributory negligence but, if found guilty thereof, that he was excused therefrom by defendants' subsequent negligence. In that contention plaintiff was correct. The trial court's view is not supported by the cases just above cited. In the Gibbard case this court held that the question of plaintiff's contributory negligence was properly one for the jury, but, at the same time, held the lower court correct in also submitting to the jury the question of defendant's 'gross negligence' (not in that case synonymous with 'subsequent negligence'). In the Davidson case this court considered at length the question of whether the trial court was correct in holding plaintiff guilty of contributory negligence as a matter of law, following which we passed on the question of whether, under the facts of that case, defendant was guilty of subsequent negligence. This was a plain recognition by this court of plaintiff's right to have considered both the question of his own freedom from contributory negligence and that of defendant's subsequent negligence. In the Morrison case it happens that plaintiff's negligence was an admitted fact; but the question of whether plaintiff could go to the jury, first on the question of his own freedom from contributory negligence and, if found guilty thereof, then of defendant's subsequent negligence, was not involved nor considered. Likewise, in the Dulemba case we considered first whether the question of plaintiff's guilt of contributory negligence was one of law or fact, and thereafter the claim of defendant's subsequent negligence, which we rejected on the single ground that it was not shown that defendant had or should have discovered plaintiff in a position of peril in time sufficient to avoid the injury to him.

While neither the trial court nor defendants cite nor rely upon the case, this court's opinion in Kerns v. Lewis, 246 Mich. 423, 224 N.W. 647, would seem, upon cursory reading, to lend support to the trial court's view. We think, however, as an examination of the record and briefs bears out, that the real meaning of that case is that the doctrine of last clear chance, apparently never urged by plaintiff, was not in the case because not pleaded. Language in the opinion appearing to support the view of the trial court in the instant case we reject as utterly out of harmony with the views of this court uniformly reflected in its other opinions on the subject, both before and ever since. In addition to the cases above discussed, see also in this connection Kelley v. Keller, 211 Mich. 404, 179 N.W. 237; Golob v. Detroit United Railway, 228 Mich. 201, 199 N.W. 639; Howell v. Hakes, 251 Mich. 372, 232 N.W. 216, and Mallory v. Pitcairn, 307 Mich. 40, 11 N.W.2d 318.

The confusion in this case appears to have resulted from a misconstruction of the expressions of this court on the subject, of which the following from Davidson v. City of Detroit, supra, is typical: 'In order to apply the doctrine of subsequent negligence * * * plaintiff's negligence must have put her in a position of danger, must have ceased to operate as the proximate cause of the accident, the defendant must have discovered plaintiff's peril or should by the exercise of ordinary care and diligence have discovered plaintiff's peril, the defendant must have had sufficient time and ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand, and failed or omitted to use such care and diligence to avert the threatened injury.' [307 Mich. 420, 12 N.W.2d 416.] The quoted language does not lay down the rule that a plaintiff must plead or concede his own negligence in order to be entitled to go the jury on the last clear chance doctrine. Rather, it means that even though the court or jury should find that plaintiff was placed in a position of peril through his own negligence, the latter will not bar recovery by plaintiff if it had ceased to operate as a proximate cause of the injury caused by defendants' subsequent negligence. The law has been well stated in Gibbard v. Cursan, supra, as follows:

'In the ordinary case of negligence, if the plaintiff has been guilty of negligence contributing to the injury for which the action is brought, he cannot...