Young v. Groenendal

• Decision Date: 25 March 1968
• Docket Number: No. 2,Docket No. 926,2
• Parties: Paul Robert YOUNG, Deceased, by James H. Young, Administrator of the Estate of Paul Robert Young, Deceased, Plaintiff-Appellant, v. Robert W. GROENENDAL and Harry H. Fetterly, d/b/a Pete's Service Center, a Michigan co-partnership, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 158

159 N.W.2d 158

10 Mich.App. 112

Paul Robert YOUNG, Deceased, by James H. Young, Administrator of the Estate of Paul Robert Young, Deceased, Plaintiff-Appellant, v. Robert W. GROENENDAL and Harry H. Fetterly, d/b/a Pete's

Service Center No. 2, a Michigan co-partnership,

Defendants-Appellees.

Docket No. 926.

Court of Appeals of Michigan, Division No. 2.

March 25, 1968.

Released for Publication June 18, 1968.

Rehearing Denied Aug. 6, 1968.

Wallace D. McLay, Pontiac, for appellant.

David J. Watters, Jr., Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, for appellees.

Before T. G. KAVANAGH, P.J., and GILLIS and McGREGOR, JJ..

GILLIS, Judge.

James H. Young, administrator of the estate of Paul Robert Young, deceased, brought this wrongful death action ¹ against the defendants, Robert W. Groenendal and Harry H. Fetterly, doing business as Pete's Service Center No. 2, for maintaining a nuisance which was the alleged proximate cause of the death of plaintiff's decedent.

On October 12, 1962, Paul Robert Young, a 13 year old boy was riding his bicycle in a westerly direction on a sidewalk adjacent to the south side of Elizabeth Lake road. One Roy Rodney Barnes was driving his car in an easterly direction in the lane closest to the south curb of Elizabeth Lake road. Plaintiff alleges that as Paul turned right on defendants' driveway to cross Elizabeth Lake road his vision of oncoming traffic from the west obscured by signs placed there by the defendants advertising their business. Plaintiff asserts that these signs were erected in violation of C.L.S.1961, § 247.276 (Stat.Ann.1968 Cu.Supp. § 9.1406), which reads in pertinent part:

'In no case shall any sign, marker or advertising device, except signs and guide posts erected by or with the approval of the proper highway commissioner or commissioners * * * be erected, painted or maintained within 500 feet from any highway intersection * * * or so as to obstruct the view of any such intersection * * * or in any manner dangerous to the public.'

Paul proceeded onto Elizabeth Lake road where Barnes' automobile struck and killed him.

The trial court on March 26, 1965 directed a verdict of no cause of action at the conclusion of plaintiff's case stating that the plaintiff's decedent was guilty of contributory negligence as a matter of law and therefore his claim was barred.

On appeal the plaintiff contended that: (1) The defendants created a public nuisance by erecting and maintaining signs in violation of the statutes of this State and that contributory negligence is not a defense to an action founded on a theory of nuisance; (2) The plaintiff's decedent was not guilty of contributory negligence as a matter of law.

The Supreme Court of Michigan has stated that as a general rule contributory negligence is available as a defense to an action based on a nuisance where the nuisance is caused by negligent conduct. Denny v. Garavaglia (1952), 333 Mich. 317, 52 N.W.2d 521. The rule is Contra by the established weight of authority when there is a 'classic' or 'standard' or 'absolute' nuisance involved. See 73 A.L.R.2d 1381. The latter type nuisance arises when one so uses his land as to cause unreasonable interference with the use and enjoyment of the land of another. The classic nuisance is not in question here because there are no conflicting real property interests being asserted.

Whether the source of a nuisance action is really negligence requires attentiveness to all the facts of the action. In Dahl v. Glover (1956), 344 Mich. 639, 75 N.W.2d 11, the Supreme Court, relying on Denny v. Garavaglia, supra, held that a jury charge on contributory negligence as a defense to be considered by the jury was proper although plaintiff, at the close of her evidence, withdrew her count in negligence and relied solely on her count in nuisance. In the instant case, with no change in the facts alleged to support the cause of action, plaintiff amended his complaint to read nuisance instead of negligence. As in Dahl v. Glover, supra, the trial court may and should penetrate the formal label to discover the actualities of the case.

If liability is to be placed on the defendants in the present case, it must be predicated upon their violation of a duty owed to the plaintiff either in that they erected and maintained signs in violation of C.L.S.1961, § 247.276, supra, that obstructed plaintiff's decedent's vision as he came along the driveway and into the road, or that the maintenance of such signs was the breach of a common-law duty owed to plaintiff's decedent. The gist of this action is negligence. Therefore, contributory negligence is available as a defense. In Judge Cardozo's view, 'whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance. * * * It would be intolerable if the choice of a name were to condition liability.' McFarlane v. City of Nagara Falls (1928), 247 N.Y. 340, 344, 345, 160 N.E. 391, 392, 57 A.L.R. 1. ²

Plaintiff next contends that under the circumstances, plaintiff's decedent could not be guilty of contributory negligence as a matter of law.

There is a presumption recognized in the law that a decedent exercised due care for his own safety. However, this presumption disappears when there is direct, positive and credible evidence introduced to rebut it. In the case of Gillett v. Michigan United Traction Co. (1919), 205 Mich. 410, 415, 416, 171 N.W. 536, 538, the Court held:

'When direct, positive and credible rebutting evidence is introduced, the presumption ceases to operate; but when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury, and if they decide that the circumstantial evidence should be disregarded, the presumption is still sufficient to establish plaintiff's case as to the exercise of proper care by the deceased. Moreover, it is only in cases where direct testimony of credible eyewitnesses as to the negligence of deceased is Uncontradicted, that the court is warranted in directing a verdict for the defendant on the ground of decedent's contributory negligence.'

In an action by the administratrix of a person killed in a highway accident, the presumption of decedent's freedom from contributory negligence is not available where there is at least one living eyewitness to the accident, even if the witness is the defendant. Kalbfleisch v. Perkins (1937), 282...