VanderLaan v. Miedema

• Decision Date: 25 February 1970
• Docket Number: No. 3,Docket No. 6731,3
• Citation: VanderLaan v. Miedema, 22 Mich.App. 170, 177 N.W.2d 457 (Mich. App. 1970)
• Parties: Robert VanderLAAN and Dorothy VanderLaan, Plaintiffs-Appellants, v. Ronald MIEDEMA d/b/a Miedema Construction Co., and Stephen Jay Karsten, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan

Page 457

177 N.W.2d 457

22 Mich.App. 170

Robert VanderLAAN and Dorothy VanderLaan, Plaintiffs-Appellants, v. Ronald MIEDEMA d/b/a Miedema Construction Co., and Stephen Jay Karsten, jointly and severally, Defendants-Appellees.

Docket No. 6731.

Court of Appeals of Michigan, Division No. 3.

Feb. 25, 1970.

Released for Publication June 4, 1970.

Wesley J. Nykamp, Catchick, Mohney, Norris, Goodrich & Titta, Grand Rapids, for plaintiffs-appellants.

Calvin R. Danhof, Cholette, Perkins & Buchanan, Grand Rapids, for defendants-appellees.

Before V. J. BRENNAN, P.J., and R. B. BURNS and T. M. BURNS, JJ.

V. J. BRENNAN, Presiding Judge.

This is an action to recover damages for injuries sustained by plaintiff Dorothy VanderLaan on June 24, 1965, when a truck driven by defendant Karsten and owned by defendant Miedema struck her automobile in the rear. The jury returned a verdict of no cause of action, and the trial court denied plaintiffs' motions for a new trial and a judgment notwithstanding the verdict. The plaintiffs appeal.

From the evidence most favorable to the defendants, ¹ it appears that Dorothy VanderLaan was driving along Aberdeen street in Grand Rapids when a truck in front of her slowed to 5 or so mph to shift gears before attempting an incline in the road. She followed suit, slowing to 5 mph a carlength or two behind. Just as she slowed, a truck 2 or 3 car lengths behind her, the one driven by defendant Karsten, went over a dip or bump in the road. Jolted, Karsten turned his head to the side for one second to look through the outside rearview mirror and see whether he had lost his load of lumber. Finding the plaintiff's automobile moving at 5 mph and only 15 to 20 feet away when he turned back, he applied the brakes and swerved, but not in time to avoid a collision. Karsten testified that before the jolt he had been moving at 25 or so mph and that he did not see the plaintiff slow until after he looked ahead again, when, according to him, her brake lights first flashed. The investigating officer ticketed Karsten for violating the assured-clear-distance statute. ²

After the close of proofs, the trial judge recited the assured-clear-distance statute and informed the jury that a motorist is Prima facie guilty of negligence by statute ³ if he strikes the rear-end of an automobile moving in the same direction. He then added, at the defendants' request and over the plaintiffs' objection:

'However, if you find that the defendant was confronted with a sudden emergency, not of his own making, and if you find that he used ordinary care and was still unable to avoid the violation because of such emergency, then, of course, his violation is excused. If you find that the defendant violated this statute and that the violation was not excused, then you must decide whether such negligence was a proximate cause of the occurrence * * *.

'If you find that the defendant violated this statute before or at the time of the occurrence, then the law presumes that he was negligent. However, if you find that the defendant was confronted with a sudden emergency not of his own making, and if you find that he used ordinary care and was still unable to avoid the occurrence because of such emergency, then the presumption is overcome. In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence of the claim of sudden emergency, and if after so weighed you are unable to decide that the presumption has been overcome, then you must find that the defendant was negligent. And if you find that the defendant was negligent, you must then decide whether such negligence was a proximate cause of the occurrence.'

The plaintiffs contend that the instruction should not have been given because 1) 'sudden emergency' is an affirmative defense that is waived unless pleaded, GCR 1963, 111.3 and GCR 1963, 111.7, and defendants did not plead it, and 2) the instruction is not supported by the evidence. In opposition the defendants disagree that 'sudden emergency' is an affirmative defense, contend that the instruction is supported by the evidence, and point to the jolt and Karsten's looking through the rear-view mirror as the 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 496, 132 N.W.2d 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.' Expression of the doctrine in its classic form is found in Walker v. Rebeuhr (1931) 255 Mich. 204, 206, 237 N.W. 389 and Paton v. Stealy (1935), 272 Mich. 57, 62, 261 N.W. 131, 132:

'One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.' (quoted from Huddy on Automobiles (8th Ed) p. 359)

See also, Myler v. Bentley (1924), 226 Mich. 384, 386, 197 N.W. 521; Craddock v. Torrence Oil Co. (1948), 322 Mich. 510, 34 N.W.2d 51; Loucks v. Fox (1933), 261

Mich. 338, 246 N.W. 141; and the jury instruction approved in Rossien v. Berry (1943), 305 Mich. 693, 703, 9 N.W.2d 895. In later cases, some of which are cited below, the doctrine has been applied to avoid the harshness sometimes created by the assured-clear-distance and rear-end collision statutes. Under either application of the doctrine, the party invoking it is entitled to a proper instruction if there is any evidence indicating that an emergency within the meaning of the doctrine existed. McKinney v. Anderson (1964), 373 Mich. 414, 420, 129 N.W.2d 851. If, on the other hand, such evidence is absent, it is error to instruct the jury that the party invoking the doctrine is not liable if they find that he acted reasonably during an emergency. See Baker v. Alt, Supra, 374 Mich. at 497, 132 N.W.2d 614. Implicit in these propositions is the authority of both the trial and appellate court to determine whether the condition said to constitute an emergency is indeed an emergency within the meaning of the doctrine. And, again, if the court determines that it is not, no instruction should be given. Before turning to this question as it is presented here, we note that the instant case does not involve the doctrine in its classic form--that is, beset by a dilemma not of his own making, the motorist reasonably chooses under duress an alternative less fortunate than another--but rather the doctrine as it is used to define conditions that excuse a motorist from liability under the assured-clear-distance and rear-end collision statutes, thereby avoiding the harshness their application would otherwise create.

Violation of the assured-clear-distance statute is negligence Per se while violation of the rear-end collision statute is Prima facie negligence. McKinney v. Anderson, Supra, 373 Mich. 419, 129 N.W.2d 851. Whatever the practical differences attaching from this difference in labels, neither of these closely related statutes creates a liability that is indefeasible. As it has been said before, the motorist who collides with the rear of another automobile is not an insurer. Sun Oil Co. v. Seamon (1957), 349 Mich. 387, 412, 84 N.W.2d 840. If an extraordinary condition is presented, and the motorist exercised the care of a reasonable man under the condition, h...