Vaas v. Schrotenboer

• Decision Date: 01 March 1951
• Docket Number: No. 30,30
• Citation: 329 Mich. 642,46 N.W.2d 416
• Parties: VAAS et al. v. SCHROTENBOER et al.
• Court: Michigan Supreme Court

Page 416

46 N.W.2d 416

329 Mich. 642

VAAS et al. v. SCHROTENBOER et al.

No. 30.

Supreme Court of Michigan.

March 1, 1951.

Mitts & Smith, Grand Rapids, for plaintiff and appellant.

Harvey L. Scholten, Grand Haven, for defendants and appelles.

Before the Entire Bench.

BOYLES, Justice.

This is a suit to recover damages for injury to Dorothy A. Vaas, a minor, as the result of being struck by an automobile driven by the defendant Harold Schrotenboer, owned by his father, Arthur Schrotenboer. The nominal plaintiff sues as guardian and assignee, therefore Dorothy A. Vaas, the real plaintiff in interest, will be referred to as the plaintiff, and Harold Schrotenboer, the driver of the automobile, will be designated as the defendant. The issues of fact as to negligence of the defendant, contributory negligence of the plaintiff, and proximate cause, were submitted to a jury under appropriate instructions from the court and the jury returned a verdict of no cause for action. Plaintiff appeals, and seeks reversal on the grounds that the verdict was contrary to the great weight of the evidence, that the court erred in certain respects in charging the jury, and for claimed errors in making reference to insurance.

The question of great weight was properly raised by plaintiff on a motion for new trial denied by the court, and therefore requires our consideration of the facts. Plaintiff was 2 months past 15 years of age at the time of the accident, and the defendant was 19. The accident occurred about 6:45 p. m., August 14, 1947, on a clear, bright day, at the intersection of First avenue and the Ottawa Beach road which runs between Holland and Ottawa Beach in Ottawa county. That date was a halfholiday in Holland and traffic between Holland and the beach was moderately heavy. Plaintiff, accompanied by a girl friend of about the same age, walked east from her parent's cottage on First avenue toward the Ottawa Beach road for the purpose of crossing the road to a store. First avenue is a narrow dirt and sand road intersection Ottawa Beach road at right angles. A board walk extends along the north side of First avenue, with several steps leading down to the level of the Ottawa Beach road at the intersection. They went down the steps upon reaching the Ottawa Beach road and started to cross together. At that point the beach road runs northeasterly and southwesterly, paved 16 feet in width, and is straight to southwest from a point variously estimated by witnesses at 2 or 3 city blocks, or from 400 to 600 feet, and is also straight for a somewhat greater distance to the northeast. This is a residential area where many summer cottages are located. As plaintiff and her companion went down the steps their view of the Ottawa Beach road was unobstructed both to the right and to the left for distances of at least 400 feet. Plaintiff and her companion looked both ways on the Ottawa Beach road an saw the defendant's car from 400 to 600 feet approaching on their right. The defendant was returning from Ottawa Beach with two companions, and there is testimony there was a car ahead of the defendant's car a short distance which passed through the intersection before defendant reached it. Several witnesses testified that the defendant was driving between 20 and 25 miles per hour. There was other testimony estimating his speed at 30 to 45 miles per hour. Plaintiff and her girl companion started to cross the Ottawa Beach road together. The driver of an automobile on the beach road closely approaching the intersection from their left testified that he saw them start to cross the beach road, that after taking a step or two plaintiff's companion turned back but that plaintiff ran across the road, attempting to get across in front of the defendant's car, which then must have been close upon her. There was other testimony that plaintiff did not run. Some witnesses testified that she attemped to run across when defendant's car was only 18 or 20 feet away, that her girl companion hollered 'Wait' and tried to grab her. The defendant swerved his car to the right off the pavement apparently to avoid striking the plaintiff. The storekeeper testified that traffic was moving possibly 25 or 30 miles an hour, that he saw plaintiff and her companion waiting for cars to go by, saw the defendant's car, heard plaintiff's companion 'holler 'Wait," saw plaintiff running across at an angle to her left, that he saw defendant swing to the right, and saw the accident. His customer testified she heard a scream before plaintiff started to run, that plaintiff went one way and her companion another. There was testimony to the contrary, particularly from plaintiff's companion whose recollection was not very definite as to the facts, at the tim she testified at the trial. There was a dispute in the testimony as to exactly where the plaintiff was when strck, whether still on the pavement or whether she had reached the sand shoulder and was struck there. Some witnesses testified that plaintiff was off the pavement when struck, and other witnesses testified that she was about three-quarters of the way across the pavemetn when struck. There seemed to be general agreement that the defendant's car veered to the right before or at about the time of the collision. It came to a stop on a slight embankment at about a 30-degree angle to the pavement after it had hit a telephone pole about 17 feet off the pavement. Counsel agree that plaintiff was struck by the front end of defendant's car, between the grille and the left fender, and that she landed 3 or 4 feet off the pavement.

Under the disputed questions of fact, the court submitted to the jury the questions of fact as to the speed of the defendant's car, whether he could stop within the assured clear distance ahead, whether he was confronted with sudden emergency, whether his negligence, if any, was a proximate cause of the accident, and whether the plaintiff was free from contributory negligence which was a proximate cause of the accident. No special questions were submitted to or answered by the jury ¹ and the verdict was general, consequently the record here does not indicate whether the jury by its verdict found the defendant free from negligence, or guilty of negligence and the plaintiff guilty of contributory negligence.

We conclude that the issues as to the defendant's negligence, plaintiff's contributory negligence, and proximate cause were clearly questions of fact to be submitted to the jury, and that there was a sufficiency of disputed testimony from which the jury might properly find that the defendant was not guilty of negligence as a proximate cause of the accident, or that the plaintiff was guilty of contributory negligence which was a proximate cause. The credibility of the witnesses was for the jury and the verdict was not against the great weight of the evidence.

Appellant claims it was error for the trial court to refuse to charge the jury in accordance with plaintiff's request, 'that if the defendant was exceeding the statutory speed limit he was guilty of negligence as a matter of law.' Such an instruction would mean, in effect, that a violation of the 25 mph speed requirement would make the defendant liable for negligence, as a matter of law, without regard to whether the defendant was confronted with a sudden emergency, or whether speed was a proximate cause of the accident. Appellant assumes that while a violation of a provision of the motor vehicle law constitutes negligence per se, it necessarily follows that ipso facto the driver is guilty of negligence, as a matter of law, without any exceptions. Counsel in their brief claim:

'Under these circumstances we believe it is so clear as to be beyond argument that the plaintiff was entitled to a clear and positive instruction that if Harold Schrotenboer was travelling in excess of 25 miles per hour he was negligent as a matter of law.'

The court instructed the jury that the accident occurred in a 25 mph zone, that the legal speed limit there was presumed to be a speed of 25 miles per hour, within which that road could be traversed with safety; and that any person is required by law to drive a car at a careful and prudent speed having due regard to traffic and conditions so that he can bring it to a stop within the assured clear distance ahead. The court charged:

'In a residential district unless a different speed is fixed by local authorities and posted, it shall be prima facie unlawful to drive a vehicle at a speed exceeding 25 miles per hour. But if you find under the conditions existing at the time and place of this accident that such speed would be unsafe--in other words, 25 miles per hour would be unsafe, then such speed would not be lawful and if the driver was found by you to be driving at the rate of speed as you find he was driving and was driving faster than was reasonable and proper, having due regard to the traffic, surface and width of the highway, and any other conditions existing at such time and place, if you find that such speed being unlawful was the proximate cause of the collision in this case, then he would be guilty of negligence even though he might be driving at 25 miles an hour or less.

'I charge you, Ladies and Gentlemen of the Jury, that if the defendant acting as a reasonably prudent person could have seen the plaintiff, Dorothy Vaas, was about to cross the highway and was crossing it, then it was his duty to bring his car under such control on approaching this intersection in question so that he could bring it to a stop within the assured clear distance ahead and if he failed to do that upon approaching this intersection, then that would constitute negligence on the part of this defendant.'

While we have hald that a violation of the motor vehicle law is negligence per se, e. g., see Garbacz v. Grand Trunk Western Ry. Co., 323 Mich. 7, 34 N.W.2d 531, it still follows that the negligence must be a proximate...