Staunton v. City of Detroit, s. 15-17

• Decision Date: 01 March 1951
• Docket Number: Nos. 15-17,s. 15-17
• Parties: STAUNTON v. CITY OF DETROIT.
• Court: Michigan Supreme Court

Page 569

46 N.W.2d 569

329 Mich. 516

STAUNTON v. CITY OF DETROIT.

Nos. 15-17.

Supreme Court of Michigan.

March 1, 1951.

Temple, Brown, Temple & Williams, Detroit, for appellants. Robert J. DeMund, Detroit, of counsel.

James S. Shields and Leo A. Sullivan, Detroit, for appellee.

Before the Entire Bench.

CARR, Justice.

These cases were tried together in circuit court and on stipulation the appeals have been consolidated. Plaintiffs' causes of action arose from a traffic accident occurring in the City of Detroit on the 26th of November, 1946, about 6 o'clock in the evening. At the time the plaintiffs Mary Staunton and Mary Madeline, her six year old daughter, were undertaking to cross the paved portion of Joy Road at or near the intersection of that highway with Rutland Avenue. It was their claim on the trial that they were struck and injured by a bus owned and operated by the defendant, and that the accident occurred because of negligence on the part of the bus driver. The proofs indicate that they left the north side of Joy Road and proceeded to the middle of the pavement, which was 40 feet in width, where the driver of an eastbound automobile brought his vehicle to a stop immediately in front of them. While they were standing with others beside the automobile in question, defendant's bus came from the west, behind the standing automobile, swerved to the north to avoid striking the car, and struck Mrs. Staunton and Mary Madeline, inflicting injuries for which they brought their respective suits to recovery damages. The other plaintiff, the husband of Mary Staunton and father of Mary Madeline, also instituted suit to recover for their hospital and medical expenses and for the loss of the services of his wife in the home.

At the conclusion of plaintiffs' proofs counsel for defendant moved for directed verdicts, claiming that plaintiffs had failed to show negligence on the part of the bus driver and had also failed to establish freedom from contributory negligence. The motion was denied, without prejudice to the right of defendant to renew it at the conclusion of the proofs. Thereupon defendant introduced the testimony of witnesses, and the motion, on renewal, was taken under advisement in accordance with the provisions of the Empson Act. ¹

Following submission of the cases to the jury verdicts were returned in the amounts of $3,000 for James Staunton, $7,000 for Mrs. Staunton, and $5,000 for Mary Madeline. Thereafter defendant made a motion for new trials, and also asked for judgments notwithstanding the verdicts. The latter motion was granted, the trial judge stating in his opinion 'that the plaintiffs showed no actionable negligence on the part of the defendant driver; that plaintiffs were guilty of contributory negligence as a matter of law; that the proximate cause of the accident was plaintiffs' negligence, or, at least, the concurrent negligence of plaintiffs, and that the motions made by counsel for defendant at the end of plaintiffs' proofs, and at the end of all the proofs, for directed verdict of no cause for action, should have been granted.' Judgment was thereupon entered for defendant against the three plaintiffs. An opinion was also filed by the trial judge denying the motion for a new trial.

On behalf of appellants it is urged that the trial court was in error in holding that plaintiffs' proofs were not sufficient to justify submitting to the jury the issues in the case. In considering the case we have in mind the well established rule that on appeal from a judgment for a defendant notwithstanding the verdict of the jury the testimony must be construed in the light most favorable to the plaintiff. Longfellow v. City of Detroit, 302 Mich. 542, 5 N.W.2d 457; Wimmer v. Colman, 307 Mich. 413, 12 N.W.2d 378; Waskelis v. Continental Baking Co., 310 Mich. 649, 17 N.W.2d 785; Swartz v. Dahlquist, 320 Mich. 135, 30 N.W.2d 809. Inconsistencies or contradictory statements in the testimony of witnesses does not bar the application of the rule. Yampolsky v. Smith, 320 Mich. 647, 32 N.W.2d 8.

In their declarations the plaintiffs alleged that defendant's employee was operating the bus at an excessive rate of speed and in a careless and reckless manner, that he failed to keep a reasonable and proper outlook for others on the highway, and that he was driving in such a manner and at such speed that he was unable to stop within the assured clear distance ahead. Counsel specifically call attention to a provision of the motor vehicle law of the State in effect at the time of the accident, appearing in C.L. 1929, § 4697, as amended by P.A. 1939, No. 318, Comp.Laws 1948, § 256.305, Stat.Ann. 1945 Cum.Supp. § 9.1565, which read as follows: 'Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other condition then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.'

It is urged by appellants that the testimony was sufficient to establish that defendant's bus driver violated the provisions of the statute in the operation of his vehicle, and that he was guilty of negligence in failing to exercise due and proper care under the circumstances. Emphasis is placed on the testimony of the driver, who was called by plaintiffs for cross-examination. He stated that on the day of the accident he had begun work at 6 o'clock in the morning, and that he had been actually engaged in driving a bus about nine and one-half hours prior to the occurrence in question. It is a fair inference from his statements that driving conditions were such as to involve some degree of nervous tension, and that at 6 o'clock in the evening he was weary. The pavement was wet at the time of the accident, and it was dark or nearly so. In describing the situation the witness said, in part:

'My headlights and the street lights were on. I was driving about 35 miles an hour at this point. As I approached the intersection at Rutland, there was considerable traffic going west whose headlights were quite bright, from which I was momentarily blinded. At this time I was between Rutland and Southfield on Joy Road. I don't recall how far from Southfield, but quite a number of feet. I would guess anywhere between eight to twenty. Rutland and Joy Road is not really an intersection. It is a jog in the street, and it is a long block from Southfield to Rutland. After my eyes focused back on the road from the blinding lights, the first thing I seen was the red lights blinking. The drivers at the D.S.R. barns had been warned concerning a railroad crossing, which was further down the road from this intersection, and when I first seen these red lights blinking my first impression was that it was the railroad crossing, yet I know what the blinking lights were and knew it couldn't possibly be that or else it had been changed. I was in sort of a fog as to what they were and continued on at my usual speed in an easterly direction. I was still watching and trying to make out just what these lights were when I saw it was the tail lights on this car. At that time the car was directly in front of me in the same lane, on the right of the righthand lane. Joy Road at this particular point is a four-lane highway. I don't know how wide it is, nor do I know whether or not it was divided down the center by a dividing line.

'Q. When you saw it finally and realized these lights were lights of a car ahead of you, how far ahead of you was that car at that time? A. I can't judge space. The car ahead of me was either stopped or was stopping because his tail lights blinked, and at the same time I saw all these people who were running around in front and behind him. There must have been 15 or 20, at least. I don't know whether or not there were some that were not running. When I finally realized this was a car stopped in front of me, I hit my brakes. After I applied my brakes, the bus continued east. I skidded for an unknown distance and then realized I wasn't stopping as fast as I should, and I jackknifed my wheel to the left. I don't know how far in back of the standing car I was when I did this.'

The witness further stated that he did not realize he was on cement until he undertook to apply his brakes. His testimony clearly indicated that he saw the red lights blinking on the rear of the automobile beside which Mrs. Staunton and Mary Madeline were standing. With reference to his conduct at that time, the following excerpts from his testimony are significant.

'Re-Cross Examination

'By Mr. Temple: 'At the time I saw the lights blinking and didn't realize what they were, I continued at 35 miles an hour, and all of a sudden I realized those were lights of a car right in front of my car. I attempted to stop, swung to the left, and hit the girl.

'Re-Cross Examination

'By Mr. Sullivan: Q. Is...