Williams v. Fiedlar

• Decision Date: 26 February 1970
• Docket Number: Docket No. 5903,No. 2,2
• Citation: Williams v. Fiedlar, 177 N.W.2d 461, 22 Mich.App. 179 (Mich. App. 1970)
• Parties: Francis Thomas WILLIAMS, Plaintiff-Appellant, v. Myron W. FIEDLAR and Larry Fiedlar, jointly and severally, Defendants- Appellees
• Court: Court of Appeal of Michigan

Page 461

177 N.W.2d 461

22 Mich.App. 179

Francis Thomas WILLIAMS, Plaintiff-Appellant, v. Myron W. FIEDLAR and Larry Fiedlar, jointly and severally Defendants- Appellees.

Docket No. 5903.

Court of Appeals of Michigan, Division No. 2.

Feb. 26, 1970.

Released for Publication June 4, 1970.

Robert L. Coopes, Detroit, for plaintiff-appellant.

George A. Googasian, Pontiac, for defendants-appellees.

Before QUINN, P.J., and T. M. BURNS and DANHOF, JJ.

T. M. BURNS, Judge.

This civil action arises out of an automobile accident which occurred on a snowy night in February, 1963, at the intersection of Stanford and Eleven Mile Road in Oakland County.

Plaintiff testified that he was going east on Eleven Mile Road, at a speed that ranged from 15 to 25 miles per hour, behind an old black Buick. The plaintiff testified that this Buick was weaving from lane to lane in a rather erratic and unsafe manner. The plaintiff further testified that as he approached the Stanford intersection, the Buick was in the lane nearest the curb and seemed to slow down.

The plaintiff testified that he then decided to pass the Buick but as he was about to, the Buick speeded up and came over into the center lane. The Buick and the plaintiff then proceeded the remaining half block to the intersection where according to the plaintiff's testimony the Buick, without giving any indication, stopped suddenly.

The plaintiff was somehow able to stop his car short of a collision with the Buick; but almost immediately after his sudden stop, his car was hit from the rear by one driven by the defendant.

The defendant, like the plaintiff, was traveling east on Eleven Mile. The defendant testified that although he was traveling at around twenty miles per hour and about two and one-half car lengths behind plaintiff, he never saw the Buick.

Since he was on a through street and as there was no traffic control device at the intersection, the defendant was surprised when the plaintiff suddenly stopped. The defendant testified that although his car was in good working order, he was unable to stop in time to avoid plaintiff's car.

The plaintiff says that when his car was struck, it went forward into the Buick and that the Buick then left the scene.

Although the passenger in his car was apparently unhurt by the collision, the plaintiff, who had sustained injuries in a previous rear-end collision, was apparently hurt.

At the conclusion of the trial below, a verdict of no cause of action was returned by the jury on January 30, 1968. An order for judgment on the verdict was filed on February 9, 1968. Plaintiff then filed a motion for new trial, which was denied by an order entered on June 6, 1968.

On appeal, the plaintiff asserts that the jury verdict of no cause of action is against the great and overwhelming weight of the evidence. He further asserts that the trial court committed reversible error in allowing certain photographs to be admitted into evidence; in sustaining an objection to the question 'How can those degenerative changes come about?' even though there was no evidence of degeneration; in allowing cross-examination of plaintiff's witness, Dr. Parks, as to his qualifications, competence, and credibility; and in allowing cross-examination of the plaintiff as to his record of convictions for prior driving violations.

Was the jury verdict of no cause for action against the great and overwhelming weight of the evidence?

We find that the jury verdict of no cause was not against the weight of the evidence. Although plaintiff had the statutory presumption which arose from M.C.L.A. § 257.402 (Stat.Ann.1968 Rev. § 9.2102) and M.C.L.A. § 257.627 (Stat.Ann.1968 Rev. § 9.2327) in his favor, defendant, in his plea of 'sudden emergency' pled an exception to the general rule established thereby.

The plaintiff's only explanation for stopping suddenly in front of the defendant relies on 'the old Buick'. The defendant asserts that he never saw such a car.

The situation in this regard is much like the one which faced the court in Humphrey v. Swan (1968), 14 Mich.App. 683, 685, 686, 166 N.W.2d 17, 18:

'If the jury chose to believe Swan's testimony in preference to that of Tasco and Humphrey, it could have found that the Tasco automobile did start up when the light turned green and stopped suddenly without any reason for a sudden stop, thereby confronting Swan with a sudden emergency. If the jury so found it would have been justified in concluding both that Tasco was contributorily negligent and that Swan was not causally negligent. See McKinney v. Anderson (1964), 373 Mich. 414, 129 N.W.2d 851, where the Michigan Supreme Court held that since the jury in that case had found the collision occurred in the midst of a sudden emergency not of the defendant's making neither the rear-end collision statute (M.C.L.A. § 257.402 (Stat.Ann.1960 Rev. § 9.2102)) nor the assured-clear-distance-ahead statute (M.C.L.A. § 257.627 (Stat.Ann.1960 Rev. § 9.2327)) entitled the plaintiff to a directed verdict even though defendant admitted he was going too fast to avoid colliding with the rear end of plaintiff's vehicle.' (Footnotes omitted).

The Court in Humphrey went on to point out on p. 686, 166 N.W.2d at p. 19 that:

'appellate courts traditionally exercise a broader review of judges' decisions than of jury verdicts.

'A jury's verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge's verdict-view of the same facts, learned though the judge may be in law. For reasons known well to students of American history, a finding of fact by 'the twelvers' is more apt to be sound than that of one man.' Schneider v. Pomerville (1957), 348 Mich. 49, 54, 81 N.W.2d 405.' (Footnotes omitted).

Consequently, the appellate courts of this state will not substitute their judgment for that of a jury, unless the appellate court after a careful review of the record is convinced that there has been a miscarriage of justice. Middleton v. Smigielski (1962), 366 Mich. 302, 115 N.W.2d 84.

Having reviewed the record, we do not find, '* * * that the verdict is manifestly against the weight of the evidence.' Smigielski, supra, at p. 306, 115 N.W.2d 84. There being no manifest injustice, that is to say no miscarriage of justice, we conclude that the trial court did not err in refusing to grant a new trial on that ground. But see VanderLaan v. Miedema (1970) 22 Mich.App. 170, 177 N.W.2d 457.

Did the trial court commit reversible error by admitting into evidence photographs which had not been submitted at pre-trial, but which were authenticated by the plaintiff as reasonably accurate pictures of the damage shown?

The plaintiff claims that the admittance of these photographs at trial was an unfair surprise because they were not produced at pre-trial under GCR 1963, 301.1(2).

The trial judge was unconvinced by the plaintiff's complaints of unfair surprise. He said:

'THE COURT: I think we can move along. The Court can make a ruling on this matter forthwith. I call your attention first to the fact that this case was started January 19, 1965, and pre-trialed on July 8, 1965; has been pending since that time with apparent adjournments, some stipulated to and some apparently for other reasons, and that you, Mr. Taylor, came into this case on Tuesday of this week, so your background of information in regard to this case is not too good.

I point out further that this accident happened almost five years ago, and people's memories frequently fail over a period of five years, but that photographs change very little.

It would seem to the Court that a photograph taken at that time, which your client says is a fair representation, not a complete representation, but a fair representation, might have more probative value in the record and to the Jury than would your client's own memory, dulled by five years' lapse of time.

There is no indication in the file that there would be surprise, if you look at the pre-trial statement. The...