Thompson v. S. Mich. Transp. Co.
Citation | 261 Mich. 440,246 N.W. 174 |
Decision Date | 03 January 1933 |
Docket Number | No. 15.,15. |
Parties | THOMPSON v. SOUTHERN MICHIGAN TRANSP. CO. |
Court | Supreme 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.
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 Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, 438, L. R. A. 1916C, 1208.
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:
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.
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.
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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