Vsetula v. Whitmyer, Docket No. 115765

• Decision Date: 22 February 1991
• Docket Number: Docket No. 115765
• Citation: 468 N.W.2d 53,187 Mich.App. 675
• Parties: Linda S. VSETULA, Plaintiff-Appellee, v. Max WHITMYER and Maro Lynn Whitmyer, Defendants-Appellants. 187 Mich.App. 675, 468 N.W.2d 53
• Court: Court of Appeal of Michigan — District of US

Page 53

468 N.W.2d 53

Linda S. VSETULA, Plaintiff-Appellee, v. Max WHITMYER and Maro Lynn Whitmyer, Defendants-Appellants.

Docket No. 115765.

187 Mich.App. 675, 468 N.W.2d 53

Court of Appeals of Michigan.

Submitted July 19, 1990, at Lansing.

Decided Jan. 15, 1991.

Approved for Publication Feb. 22, 1991, at 9:15 a.m.

Released for Publication May 6, 1991.

[187 MICHAPP 676] Clark Shanahan, Owosso, for plaintiff-appellee.

Foster, Swift, Collins & Smith, P.C. by Scott A. Storey and Lynn K. Richardson, Lansing, for defendants-appellants.

Before MARILYN KELLY, P.J., and HOOD and DOCTOROFF, JJ.

PER CURIAM.

In this tort action, defendants appeal as of right from an order entering judgment in favor of plaintiff. Defendants contend that the trial court erred in granting plaintiff's motion for [187 MICHAPP 677] a directed verdict on the issue of negligence, in failing to instruct the jury on the sudden-emergency doctrine, in denying defendants' motion for a directed verdict, and in allowing the testimony of plaintiff's expert. Defendants also contend that the verdict in favor of plaintiff was against the great weight of the evidence. We agree that the trial court erred in granting plaintiff's motion for a directed verdict on the issue of negligence and reverse.

This case arose out of an automobile accident which occurred on December 5, 1985. Defendant Maro Lynn Whitmyer was the driver of one of the vehicles involved in the collision. Codefendant Max Whitmyer was the owner of that vehicle, but had no involvement in the collision. For simplicity, the term "defendant," when used in the singular in this opinion refers to Mrs. Whitmyer.

Defendant testified that she returned home from work between 1:00 and 1:30 p.m. on December 5, 1985. At that time, the roads were not slippery and there was no ice on her driveway. At approximately 3:50 p.m., defendant got in the car to go and get her daughter. Defendant's home is located in a wooded area approximately 150 feet from Lounsbury Road. Defendant admitted that, as she drove down her driveway, her vision was obstructed by snowflakes and a tree at the left of the driveway. Defendant estimated that she was traveling at approximately two to three miles per hour. As defendant approached the road, she applied her brakes in order to stop and check whether she had the right of way. The car hit a patch of ice and slid. At that point, defendant observed plaintiff's car traveling down the road in the northbound lane. The two cars collided. Defendant's car spun and came to rest across a ditch approximately six to seven feet to the right of the [187 MICHAPP 678] driveway. Plaintiff's car spun in the road and also came to rest in a ditch. Plaintiff got out of her car and, when asked if she was okay, said that she was fine, but shaken.

Plaintiff testified that December 5, 1985, was a cold, snowy day and that it had been raining. Plaintiff, who was driving a brown 1983 Oldsmobile Cutlass Supreme with the headlights on, was proceeding north on Lounsbury Road in the right lane at approximately thirty-five miles per hour. The posted speed limit was forty-five miles per hour. Plaintiff observed a car starting down a driveway approximately 120 feet or yards ahead. She slowed and moved over into the southbound lane. Plaintiff did not apply her brakes because she was afraid her car would spin. However, plaintiff believed that defendant would see her in time and stop. Plaintiff sounded her horn, but defendant's car continued out onto the road. The left fender of defendant's car struck the fender on the front passenger side of plaintiff's car. Plaintiff's car spun, struck a tree, and came to rest in a ditch. Plaintiff testified that she was wearing a safety belt.

Plaintiff testified that, immediately following the collision, she felt "weak, nervous and upset" and was crying. Plaintiff telephoned her brother, who arrived shortly thereafter. Plaintiff's brother pulled part of the car's body from against the wheel and drove plaintiff's car to his home. Later that evening, plaintiff drove the car home.

At the close of proofs, both parties moved for directed verdicts on various grounds. The trial court granted defendant's motions for directed verdicts with respect to the issues of wage loss and shoulder pain and took the remaining motions under advisement. The jury rendered a verdict finding that defendant had not been negligent. The [187 MICHAPP 679] trial court then set aside the jury's verdict and granted plaintiff's motion for a directed verdict on the issue of negligence. The jury was instructed to find defendants negligent and to continue deliberations. After deliberating for less than an hour, the jury found that defendant's negligence was the proximate cause of plaintiff's injuries, that the injuries constituted a serious impairment of bodily function, and that plaintiff was not negligent. The jury awarded plaintiff $100,000 damages.

Defendants contend that the trial court erred in granting plaintiff's motion for a directed verdict on the issue of negligence. Defendants argue that reasonable minds could differ on whether defendant exercised due care under the circumstances. In a related issue, defendants contend that the trial court erred in failing to instruct the jury on the sudden-emergency doctrine.

Directed verdicts, particularly in negligence cases, are viewed with disfavor. Goldman v. Phantom Freight, Inc., 162 Mich.App. 472, 477, 413 N.W.2d 433 (1987). In determining whether to grant a motion for a directed verdict, the trial court must view the evidence in a light most favorable to the nonmoving party and determine whether a prima facie case has been established. Clery v. Sherwood, 151 Mich.App. 55, 63-64, 390 N.W.2d 682 (1986). If the evidence presents material issues of fact upon which reasonable minds can differ, those issues are to be decided by the jury, thereby precluding a directed verdict. Id.; Dixon v. W.W. Grainger, Inc., 168 Mich.App. 107, 110, 423 N.W.2d 580 (1987). In deciding a motion for a directed verdict, a trial court must examine the testimony and all legitimate inferences that may be drawn from that testimony in a light most favorable to the nonmoving party. Id. When the evidence is such that reasonable jurors could disagree, neither [187 MICHAPP 680] the trial court nor this Court may substitute its judgment for that of the jury. Means v. Jowa Security Services, 176 Mich.App. 466, 471, 440 N.W.2d 23 (1989).

In moving for a directed verdict on the issue of negligence, plaintiff argued that defendant violated M.C.L. Sec. 257.652; M.S.A. Sec. 9.2352, which provides that a driver of a vehicle about to enter a highway from a driveway is required to come to a full stop before entering the highway and to yield the right of way to approaching vehicles. According to plaintiff, defendant was negligent as a matter of law, and there was no credible explanation that would excuse defendant's failure to observe plaintiff and to yield. Defendants argued that the evidence raised an issue of fact regarding the issue of negligence and that the weather conditions created an unusual condition sufficient to excuse defendants from liability. Defendants' theory was that the collision was caused by the weather conditions and not by the negligence of either party. Defendants argued that...