Szymborski v. Slatina

• Decision Date: 21 December 1971
• Docket Number: No. 22,22
• Citation: Szymborski v. Slatina, 192 N.W.2d 213, 386 Mich. 339 (Mich. 1971)
• Parties: Rosella V. SZYMBORSKI and Joseph Szymborski, Plaintiffs-Appellants, v. Philip J. SLATINA and Main Sand & Gravel Company, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 213

192 N.W.2d 213

386 Mich. 339

Rosella V. SZYMBORSKI and Joseph Szymborski, Plaintiffs-Appellants, v. Philip J. SLATINA and Main Sand & Gravel Company Defendants-Appellees.

No. 22.

Supreme Court of Michigan.

Dec. 21, 1971.

Sanford N. Lakin, Detroit, for plaintiffs-appellants.

Sugar, Schwartz, Silver, Schwartz & Tyler, by David M. Tyler, Detroit, for defendants-appellees.

Before the Entire Bench.

BRENNAN, Justice.

This rear-end collision case resulted in a jury verdict of no cause for action.

Motion for new trial was made alleging that the verdict was against the great weight of the evidence; that the court erred in its charge to the jury by failing to instruct them that the statutory presumption of negligence arising from a rear-end collision could only be overcome by clear, positive and credible evidence, and by failing to instruct the jury that the defendant had the burden of proof upon the question of 'sudden emergency.'

The motion for new trial was denied and the Court of Appeals affirmed, 26 Mich.App. 538, 182 N.W.2d 723.

We agree. The Court of Appeals correctly disposed of the two issues as follows:

On the statutory presumption:

'Where, however, we are dealing with the rear-end presumption, it appears that the standard urged by the plaintiff is pertinent only to the issue of whether the presumption has been rebutted as a matter of law. Petrosky v. Dziurman (1962), 367 Mich. 539, 547, 116 N.W.2d 748. This standard is one for the judge. If the evidence is less than clear, positive and credible, 'the question whether such presumption has been overcome should be settled--on proper instruction of course--in the jury room.' Petrosky v. Dziurman, supra, 544, 545, 116 N.W.2d 750, citing Garrigan v. LaSalle Coca-Cola Bottling Co. (1961), 362 Mich. 262, 106 N.W.2d 807. The trial court did not err in refusing to instruct that the Jury could find that the presumption was rebutted only upon clear, positive, and credible evidence.'

On sudden emergency:

"The doctrine of sudden emergency is a 'logical extension of the 'reasonably prudent person' rule,' and as such Is not an affirmative defense. Baker v. Alt (1965), 374 Mich. 492, 496, 132 N.W.2d 614. As it was said in Baker, at p. 496, 132 N.W.2d (614) at 616, the 'test to be applied is what that hypothetical, reasonably prudent person would have done under all the circumstances of the accident, whatever they were." (Emphasis supplied.) Since the 'sudden emergency' rule is not an affirmative defense, it was not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed nor was it error for the judge to refuse to so charge.'

Affirmed. Costs to appellees.

ADAMS, T. G. KAVANAGH and WILLIAMS, JJ., concur.

T. M. KAVANAGH, C.J., and BLACK, J., concur in result only.

WILLIAMS, Justice (concurring).

I concur with my Brother Brennan and believe the Court of Appeals should be affirmed. However, I think it would be useful for the bench and bar to have the pertinent part of the charges given by the trial court on record. The pertinent part is as follows:

'Now, I will read that statute again. The statute says in any action in any court in this state, when it is shown by competent evidence that a vehicle traveling in a certain direction overtook and struck the rear end of another vehicle proceeding in the same direction or lawfully standing on the highway, the driver or operator of such first mentioned vehicle shall be deemed prima facie guilty of negligence.

'Therefore, if you find that the (170) defendant violated ...