Washburn v. Lucas, 79

• Decision Date: 06 October 1964
• Docket Number: No. 79,79
• Citation: 130 N.W.2d 406,373 Mich. 610
• Parties: Wycliffe WASHBURN, Plaintiff and Appellee, v. Hubert V. LUCAS, d/b/a Lucas Funeral Home, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 406

130 N.W.2d 406

373 Mich. 610

Wycliffe WASHBURN, Plaintiff and Appellee, v. Hubert V. LUCAS, d/b/a Lucas Funeral Home, Defendant and Appellant.

No. 79.

Supreme Court of Michigan.

Oct. 6, 1964.

Rehearing Denied Nov. 2, 1964.

Davidson, Osborn & Staiger, Port Huron, for plaintiff and appellee.

Touma, Watson, Andresen & Kelly, Port Huron, for defendant-appellant.

Before the Entire Bench.

ADAMS, Justice.

This case arose out of an intersection collision. Plaintiff was awarded a jury verdict of $50,000. Defendant appeals from entry of judgment on the verdict and from orders denying his motions for judgment notwithstanding the verdict and for new trial.

Defendant contends that plaintiff was guilty of contributory negligence as a matter of law on the theory that plaintiff entered an uncontrolled intersection without reducing his speed or taking steps to avoid being struck by defendant's vehicle approaching from his right at approximately the same speed. It was not incumbent upon the trial judge to adopt that testimony most favorable to the defendant upon motion for a judgment notwithstanding the verdict of the jury because all of the witnesses were produced by the plaintiff, but, rather, to view the evidence in a light most favorable to the plaintiff. See Anderson v. Gene Deming Motor Sales, Inc., 371 Mich. 223, 123 N.W.2d 768, and cases cited therein at pages 229, 230.

A collision occurred at about 3 p. m., on June 1, 1961, a rainy, drizzly day, at an uncontrolled intersection in Port Huron. Plaintiff, driving a fire-engine-red 1959 Nash Rambler station wagon, was proceeding west on Pine Street. Defendant's 1961 Ford station wagon was being driven south on 18th Street by Colgan, an employee. The cars collided in the northwest quadrant of the intersection. Plaintiff's car was struck on the right side with the point of greatest damage on the right front door at the pillar post, 51 inches from the front bumper. The car body was pushed in 20 1/2 inches. The motor was ripped free from the left rear motor mount.

Just before the accident, a Mrs. Pochodylo, whose home was located on the southwest corner of the intersection, went into a room on the northeast corner of her house and pulled back the draperies of a corner window. To the north, she saw defendant's vehicle coming south; and, to the east, she saw plaintiff's automobile proceeding west. Both cars seemed about the same distance from the intersection and were in their own lanes, traveling at about the same rate of speed. She saw the cars crash but was unable to testify as to which one came to the intersection first or which one came into the intersection first. Mrs. Pochodylo continued to watch the cars from the moment the saw them because she knew they were going to crash.

Harold V. Zimmer, residing on the southeast corner of Pine and 18th streets, moving about in his house, saw plaintiff's car about 80 feet from the intersection and defendant's car opposite an alley that intersected 18th Street. Both cars were about the same distance away from the intersection. He first saw the defendant's car while standing at a fireplace in the living room, then the plaintiff's car through narrow kitchen windows between cupboards, and finally both cars through a window in the dining area. He did not step over to a window to see if they were going to collide. He did not see the impact.

Immediately after the accident, witnesses Pochodylo and Zimmer were interviewed by Officer Leibler. He testified, under cross examination, that they could tell him very little about it.

Colgan, the driver of defendant's automobile, left his employer's place of business and shortly turned onto 18th Street. He testified he could make the turn at 20 miles per hour. As he proceeded south, somewhere in the middle of the block, sticks were lying in his lane. He turned toward the curb to go around them, slowing down to 20 miles an hour. Afterward he costed a distance and then stepped on the gas, accelerating to approximately 25 miles an hour. He looked both ways and proceeded into the intersection. The next thing he remembered was sitting up on a lawn.

As bearing on the extent of any observation Colgan made of what was there to be seen, although he says he looked both ways, not only did he fail to see plaintiff's car coming from the east but also failed to see a Mrs. McGregor's car coming from the west on Pine Street. Mrs. McGregor was about a half a block away from the intersection at the time of the impact.

Plaintiff Washburn, suffering from traumatic amnesia, testified that the last thing he could remember was when he was in his home before the accident occurred.

State Police Trooper Wade, who had served approximately 15 years as a trooper policing some 600 or 700 accidents, and who had gone to school a number of times each year for refresher courses on his work, testified that 70 to 75% of his work is traffic accidents and traffic enforcement. He made a detailed study of the automobiles and the intersection. It was his opinion that, at the time of impact, the front wheels of the Washburn vehicle were just about on a direct line with the west curb of the north and south street and the front of the car was approximately a foot and a half beyond the curb to the west; that plaintiff's car entered the intersection first by 25 feet; and that the defendant's car had a minimum speed of 30 miles an hour with a range of not to exceed 45 miles per hour. (The legal rate of speed was 25 miles per hour.) Under cross examination Trooper Wade testified:

'* * * from my investigation and where his car was struck I believe he [plaintiff] assumed that he had the right of the intersection inasmuch as he entered it first, possibly assuming that the Lucas car was going to yield the right-of-way to him.

'Q. Well, you are speculating there as to what he saw or did not see, is that it?

'A. Not speculating to what he saw; I am telling you that he went into the intersection and had every right to assume that the intersection was his.'

Trooper Wade in justifying his conclusion stated that the direction of plaintiff's car was changed greatly from its course, to the extent almost of a right angle, which indicated to him the application of a great deal of force.

It was proper in this case for the jury to consider not only the testimony of the eye witnesses, but the physical facts, the opinion evidence of a properly qualified expert, and the presumption of due care to which plaintiff was entitled, unless rebutted by other evidence, under the circumstances of his loss of memory. Breker v. Rosema, 301 Mich. 685, 4 N.W.2d 57, 141 A.L.R. 867. The evidence was sufficient for the jury to conclude that plaintiff was not contributorily negligent. Anderson v. Gene Deming Motor Sales, Inc., supra.

With regard to the claimed error of the judge in his charge to the jury, Justice Souris indicates that the words, 'if you find,' would have cured the purported error had they been used by the trial judge at the beginning of the last sentence of the second quoted paragraph of the charge. I do not believe it was essential that the judge use these words at this point since he had already made it abundantly clear that the jury must make a finding of fact before it could reach a given result. The words, 'if you find,' were used six times before the judge gave the sentence that is considered to be objectionable (the last time in the sentence immediately preceding it) and the jury was fully charged as to its responsibility in weighing the evidence. Under the well-known rule that a charge to the jury must be considered in its entirety, I do not find error.

We are not called upon at this time to pass upon the admissibility of opinion testimony that may be offered by an expert, it being conceded that no objection was made to the testimony of Trooper Wade and that, consequently, there was no reversible error. Justice Souris, in his opinion, deals with the propriety of Trooper Wade's testimony. The validity of his advice to the trial courts depends upon agreement that '* * * the subject matter of the inquiry is of such character that it may be presumed to lie within the ordinary experience of all men of common education.' The converse of this proposition stated in Detroit, T. & I.R. Co. v. Banning, 6 Cir., 173 F.2d 752, certiorari denied 338 U.S. 815, 70 S.Ct. 54, 94 L.Ed. 493, is:

'The general rule permits a witness who is experienced in technical matters and qualified to do so, to give his opinion in a matter which is not one of common knowledge, although it involves an ultimate fact to be finally decided by the jury.' (at 173 F.2d 756)

To the same effect see Sykes v. Village of Portland, 193 Mich. 86, 159 N.W. 325; Winchester v. Chabut, 321 Mich. 114, 32 N.W.2d 358; Buehler v. Beadia, 343 Mich. 692, 73 N.W.2d 304. For a recent discussion of the modern trend toward the admission of opinion evidence, even though it bears on an ultimate issue see 32 C.J.S. Evidence § 446b. It would seem to me that any consideration of this subject might more appropriately be reserved for an occasion when the question is before this Court.

The order of the trial judge denying motion for judgment notwithstanding the verdict of the jury is affirmed. Costs to appellee.

O'HARA, Justice.

I agree with the result sought by Mr. Justice Adams but I record an observation which I feel is indicated. The testimony of Trooper Wade quoted by Justice Adams was elicited on cross-examination, and for this reason objection thereto by defendant's examining counsel was possible only upon the ground of nonresponsivity. Such objection was apparently not made and counsel does not claim error, here on appeal, in the admission of such testimony. However, I would like to make clear that in my view the testimony was highly prejudicial and far exceeded the limit of opinion testimony even by an 'expert.' Conclusions from physical facts are one thing; conclusions...