Thompson v. S. Mich. Transp. Co.

Citation261 Mich. 440,246 N.W. 174
Decision Date03 January 1933
Docket NumberNo. 15.,15.
PartiesTHOMPSON v. SOUTHERN MICHIGAN TRANSP. CO.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Shiawassee County; Joseph H. Collins, Circuit Judge.

Action by Marion Thompson by Arth A. Thompson, general guardian, against the Southern Michigan Transportation Company. Judgment for plaintiff and defendant appeals.

Reversed, and remanded for entry of judgment for defendant.

Argued before the Entire Bench.L. J. Carey and George J. Cooper, both of Detroit, and Pulver & Bush, of Owosso, for appellant.

Matthews, Hicks & Des Jardins, of Owosso, for appellee.

POTTER, J.

Marion Thompson, who sued by her general guardian, was injured October 10, 1930, on state trunk line highway No. 21, west of Owosso, while driving westerly, in an Oakland coupe, on her way to Ovid, by running into the rear of one of defendant's trucks standing on the north side of the highway. The morning was foggy. Defendant claims its motor truck went wrong and the driver thereof was compelled to stop; that he hung a warning lantern and set a flare back of the truck and went to Owosso for help. The accident occurred after daylight, while the driver of the truck was gone. Plaintiff's automobile struck the truck and she was seriously injured. There was judgment for plaintiff of $3,000. There is no dispute as to the correctness of the charge of the trial court, assuming there was sufficient evidence to submit the case to the jury, and the amount of the damages recovered is not challenged. The question is, whether the trial court should have directed a verdict against plaintiff. No one was in control of defendant's truck at the time the accident occurred. Plaintiff testifies she does not remember anything about the situation immediately preceding the accident. Plaintiff claims there being no eyewitnesses to the accident except herself, and her testimony indicating she has no recollection of the accident, the same presumption of due care arises as if the plaintiff had been killed.

In Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N. W. 536, a similar question was raised. The court passed it with the suggestion it would present an interesting question, if the case were one where the presumption would have operated had plaintiff been killed.

There is a diversity of opinion among the courts of last resort. In the following cases of personal injury, the question was considered:

‘Where there is no evidence of the fact, the presumption is against contributory negligence, even in the absence of any statute, like our own marking it a matter of affirmative defense.’ Norton v. North Carolina Railroad Co., 122 N. C. 910, 29 S. E. 886, 892.

In Heaps v. Southern Pennsylvania Traction Co., 276 Pa. 551, 120 A. 548, it was said of plaintiff: ‘In view of the fact that her mind was a blank as to the accident and all its incidents, with the natural instinct of love of life, the presumption is that she did all the law required her to do and was not guilty of contributory negligence.’

In Stotler v. Railroad Co., 200 Mo. 107, 98 S. W. 509, 521, plaintiff was severely injured at a railroad crossing and testified that she could not remember the facts relating thereto. It was said: ‘Being left by her injuries as though dead, and having no knowledge of the affair, she is entitled to certain presumptions in her favor, and those presumptions are that, in the absence of evidence to the contrary (because of the natural instinct of love of life), she did exercise due care.’

And in Tubb v. City of Seattle, 136 Wash. 332, 239 P. 1009, 1011, it is said:

‘The presumption is that the party injured was in the exercise of ordinary care, and this presumption is not overthrown by the mere fact of injury. * * *

‘This presumption of due care always obtains in favor of a plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another.’ Citing Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 39 Am. Rep. 503.

On the other hand ‘Because of the natural instinct of self-preservation which generally prompts men to exercise care and caution for their safety, there is ordinarily a presumption that due care and caution were observed in particular instances. But like other presumptions of fact arising from the ordinary or usual as distinguished from the invariable or universal conduct of normal men, this presumption may be rebutted.’ Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, 438, L. R. A. 1916C, 1208.

‘The law presumes that every person performs his duty, and this presumption continues until it is shown affirmatively that he does not or has not. Hence, wherever there is no evidence upon the subject, or where the evidence is equally balanced, this presumption in favor of the person in question requires that the findings of the court and jury should be that such person has performed his duty, and is not guilty of any culpable negligence, contributory or otherwise.’ St. Louis & San Francisco Ry. Co. v. Weaver, 35 Kan. 412, 11 P. 408, 414,57 Am. Rep. 176.

In Drago v. New York Cent. & Hudson Railroad Co., 139 App. Div. 828, 124 N. Y. S. 374, 376, plaintiff was struck by defendant's cars. She testified she did not remember anything concerning the happening of the accident. There was no evidence indicating her loss of memory was due to the injury. It was said: ‘The courts have gone a long way in holding that, where a plaintiff's intestate has been killed, thus rendering impossible the giving of testimony by such intestate, inferences may be indulged to the effect that such intestate was free from contributory negligence. But we know of no case where it has been held that the injured party may be excused from giving evidence tending to free such party from the charge of contributory negligence by simply saying that he or she cannot remember as to the circumstances or facts of the accident, without giving any evidence that such want of recollection was caused by the accident which is complained of.’

Presumptions are based upon probabilities and human experience, observation, and reason. That a crow alighted on a particular tree every morning for two months affords a probability, amounting to a week presumption, it will do so the following morning. It is the multiplicity of incidences and coincidences that affects our belief. That the sun has arisen in the east through all the centuries affords a probability, amounting to a strong presumption, it will continue to do so each day hereafter. Presumptions thus are inferences from the existence or nonexistence of facts. They have been said to be inferences, ‘which common sense, enlightened by human knowledge and experience, draws from the connection, relation, and coincidence of facts and circumstances with each other.’ 22 C. J. 82.

‘Presumptions of fact result from the proof of a fact, or a number of facts and circumstances, which human experience has shown are usually associated with the matter under investigation.’ U. S. v. Searcey (D. C.) 26 F. 435, 437.

‘All presumptions, however, are liable to be contrary to the fact, but they attend us at every point in our examinations of facts, and it is impossible to dispense with them. They do not in general preclude the facts being brought forward to overthrow the presumptions, but they supply imperfections where the facts are not fully developed, and they determine in many cases which party shall take upon himself the burden of showing what are the facts bearing upon the point in controversy.’ Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164.

‘A presumption of fact is an argument which infers a fact otherwise doubtful from a fact which is proved.’ Fadden v. McKinney, 87 Vt. 316, 89 A. 351, 354.

‘Presumptions of fact never obtain against positive proof, and are only introduced to supply the want of real facts.’ Hill v. Chambers, 30 Mich. 422.

‘The office or effect of a true presumption is to cast upon the party against whom it works the duty of going forward with evidence. It has the force and effect of a prima facie case, and, temporarily at least, relieves the party in whose favor it arises from going forward with the evidence.’ Elliott on Evidence, § 91; Baker v. Delano, 191 Mich. 204, 157 N. W. 427, 429.

Ordinary individuals cling to life, and will not voluntarily place themselves in a position where they are likely to lose it. This is, in many cases, said to be the basis of the presumption of due care, arising in cases of death without eyewitnesses.

Due care upon the part of an injured party cannot be said to be usually associated with a collision. There is no general rule. Lack of memory is not usually associated with injuries resulting from the collision of vehicles upon the public highways. In this case the loss of plaintiff's memory is not shown to have been the result of the injuries complained of. Plaintiff apparently has no lack of intelligence, but is normal in her general intelligence and memory. This loss of memory is not so usually associated with accidents of this kind that there can be said to be a general rule, and therefore a presumption of due care, which takes the place of evidence, when the party injured is apparently normal, was present in court, and intelligently testified on the trial. It is said hard cases make bad law. Should this court hold in this case the presumption of due care obtains, it would establish a rule, easily abused, and likely to lead to injustice.

It is well settled that it is...

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37 cases
  • Shaw v. Bashore, 27
    • United States
    • Supreme Court of Michigan
    • 15 Abril 1958
    ...this state of the proofs, is brought into considerable doubt by language in Breker v. Rosema, supra, Thompson v. Southern Michigan Transportation Co., 261 Mich. 440, 246 N.W. 174, and Gapske v. Hatch, 347 Mich. 648, 81 N.W.2d I agree with Mr. Justice VOELKER, as this Court has long held, th......
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    ...v. United Trucking Service, 247 Mich. 661, 226 N.W. 675;Elrich v. Schwaderer, 251 Mich. 33, 230 N.W. 902;Thompson v. Southern Mich. Transp. Co., 261 Mich. 440, 246 N.W. 174;Russell v. Szczawinski, 268 Mich. 112,225 N.W. 731. We have frequently had the adove-mentioned statute under considera......
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    ...the portion of the highway that he necessarily would have to traverse in executing the contemplated movement. Thompson v. Southern Michigan Transp. Co., 261 Mich. 440, 246 N.W. 174. It is apparently defendants' theory that there was no evidence tending to indicate any breach of such duty. T......
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    ...freedom from contributory negligence, Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536; Thompson v. Southern Michigan Transp. Co., 261 Mich. 440, 246 N.W. 174; Heckler v. Laing, 300 Mich. 139, 1 N.W.2d 484; Essmeister v. Roadway Transit Co., 275 Mich. 387, 266 N.W. 391; ......
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