Zeni v. Anderson

• Decision Date: 06 November 1974
• Docket Number: No. 3,Docket No. 16098,3
• Parties: Eleanor K. ZENI, Plaintiff-Appellee, v. Karen ANDERSON and Donald Anderson, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 310

224 N.W.2d 310

56 Mich.App. 283

Eleanor K. ZENI, Plaintiff-Appellee, v. Karen ANDERSON and Donald Anderson, Defendants-Appellants.

Docket No. 16098.

Court of Appeals of Michigan, Division No. 3.

Nov. 6, 1974.

Released for Publication Dec. 18, 1974.

Leave to Appeal Granted Jan. 29, 1975.

McDonald & Weber, Marquette, for defendants-appellants.

Baldwin, Kendricks & Bordeau, Marquette, for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH,* JJ.

HOLBROOK, Presiding Judge.

This appeal is taken from a jury verdict which found the defendant guilty of subsequent negligence and which awarded plaintiff damages of $30,000.

Lee Drive, the scene of the accident here in question, is a major thoroughfare crossing the campus of Northern Michigan University in Marquette and is subject to heavy vehicular traffic. It is a blacktop road, some 43 feet in width, which has two-way traffic. There are parking stalls, measuring 8 by 20 feet, along the curb on both sides of the street. On the southern side of the street is found the University Health Center. Some distance to the west of the Health Center is parking lot X, which abuts Seventh Street. Traffic from the northwest feeds into Lee Drive. In March of 1969 there was a sidewalk available to pedestrians on the north side of Lee Drive. However, there was on the south side only a path which had been worn down by pedestrian traffic. The following is a representation of the scene.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At around 8 a.m. on March 7, 1969, the temperature was 11 above zero, the wind was out of the west (averaging 7 miles an hour), and the sky was clear--there were no clouds in the sky and the visibility was over 15 miles. The average snow depth was 22 inches. Some minutes before 8 o'clock, plaintiff, Mrs. Zeni, a 56-year-old registered nurse employed at the University Health Center, parked her car in parking lot X. Thereafter, she walked along Seventh Street and then over to the south side of Lee Drive. At about that time, Karen Anderson, a 20-year-old single student at Northern Michigan University, accompanied by a passenger, was coming from the northwest and heading southeast on University Drive. Defendant, Karen Anderson, was driving a yellow Ford Mustang automobile, owned by her father, Donald, codefendant in this action.

Some moments thereafter, plaintiff was struck by defendant's automobile. As a result of this impact, plaintiff suffered serious injuries, including development of an intracerebral hematoma in the right temporal area. In order to remove the hematoma, neurosurgery was performed on plaintiff. After an extended period of convalescence, plaintiff returned to work on a part-time basis with continuing restrictions on her duties. She manifested some permanent disability.

Mrs. Zeni has retrograde amnesia and retains no memory from the time she left parking lot X that morning until sometime after the impact. Thus, there is no means of determining whether she discovered the defendant behind her.

There was testimony that the use of the roadway was common. Another nurse testified that she normally used the roadway of Lee Drive to get to the Health Center, as did other nurses. There was testimony that others were using the roadway that morning. Moreover, the snow on the path was not heavily packed. A security officer testified that in the winter time it was safer to walk in the roadway than on the path. Further, there was testimony that in days precedent to the accident Mr. Zeni had fallen on the path, as had the director of University Security. The security director was hospitalized.

At trial defendant Karen Anderson testified that it was normal procedure for her, when she had a passenger, to get inside her car and turn on the defroster, while the passenger scraped the windshield. Defendant was unable to remember whether she had turned her windshield wipers on. The passenger testified that she scraped the windshield. Karen estimated that her speed on that morning was from 10 to 15 miles an hour. No other testimony presented showed that her speed was any greater. The posted speed limit on Lee Drive was 15 miles an hour.

It appears that on that morning there was a steady stream of traffic. Karen testified that there was a car in front of her and one behind her. She said that she first saw the plaintiff when Mr. Zeni was 'right along side' one of the parked cars, I.e., between a car parked on the right-hand side of the road and defendant's car. She testified that she did not hear nor feel the car strike Mrs. Zeni.

The deposition of an eyewitness was read at trial. The witness, Daniel McMahon, testified that on that morning he had been on his way to a class, a few minutes before 8 o'clock. He remembered two cars as standing out in his memory. The first was a small black foreign car which had 'a small peep hole in it for the driver to see out of'. The second was a yellow Mustang, which was defendant's car. He testified that he saw the yellow Mustang hit Mrs. Zeni 'from what would be the driver's right side' and saw Mrs. Zeni flip 'over the fender, hood and fender situation.' He went over to Mrs. Zeni, who was lying on her right side facing the curb. She was bleeding from the nose. He testified that the defendant's windshield was clouded and he doubted that the occupants could see out. He also testified that he 'saw the yellow car traveling too close to the curb' and that he could tell that plaintiff was going to be hit. When he went to Mrs. Zeni, he said that his knees were on or inside the white line which delineated the perimeter of a parking space.

After plaintiff was removed for emergency care, defendant Karen Anderson and her passenger spoke to a security officer of the University. The security officer, in his report, observed that blood stains were on the pavement some 13 feet from the curb. Further, in his comments he observed that defendant's car windshield was 'wet'. No citations were issued.

In her complaint, plaintiff alleged that defendant was negligent in that she failed to drive 'at a careful and prudent speed', based upon the fact that vehicles and pedestrians were using Lee Drive and that students were proceeding to 8 o'clock classes; that she failed to keep a good lookout ahead for the safety of plaintiff and others; that she failed to exercise due care; that she failed to operate her vehicle so that it could be stopped within the assured clear distance; and, that she failed to remove and clear accumulated ice or excessive moisture or fog on the windshield of her vehicle. Defendants denied all allegations of negligence and pled the affirmative defense of contributory negligence, based upon a violation of M.C.L.A. § 257.655; M.S.A. § 9.2355, which provides:

'Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.'

Plaintiff replied to this defense that the provisions asserted by defendants did not apply to Lee Drive. By amended complaint, plaintiff further alleged:

'That, as the defendant Karen Anderson in the operation of her vehicle was driving easterly on Lee Drive, the defendant Karen Anderson discovered, or by the exercise of ordinary care, should have discovered that the plaintiff was walking upon the roadway with her back to said defendant; that said plaintiff was helpless to avoid any impending harm from automobiles approaching her from the west; that plaintiff's situation was discovered or should have been discovered in time to avoid running into her by defendant Karen Anderson in the operation of her vehicle; that there was sufficient time and sufficient distance wherein the defendant, by the exercise of ordinary care should have discovered and used the means at hand to avoid propelling her vehicle into the plaintiff.

'That defendant Karen Anderson's conduct therein was the proximate cause of the injuries to the plaintiff.'

The plaintiff prayed for $75,000 in damages and attached as an exhibit special damages of $8,494.

Before trial, defendants' counsel prepared a trial brief which indicated that defendants would object to the use of Michigan Standard Jury Instruction 14.01, the use of which was anticipated to be requested. The objection was based on the note on use in the instruction pointing out that it is inapplicable when the negligence of plaintiff is concurrent with the negligence of defendant. The brief further asserted that no proof could be offered showing that the negligence of plaintiff ever come to rest.

At the close of plaintiff's proofs, defendants moved for directed verdict on the grounds that there had been clear and positive proof of contributory negligence and no proof which would allow the jury to consider subsequent negligence. The trial court denied this motion and said that there was enough testimony to go to the jury on the question of negligence of Karen Anderson and to allow the jury to ignore the allegation of contributory negligence on the basis of the doctrine of last clear chance.

SJI 14.01 was given by the trial court. Counsel objected to the use of this instruction. The trial court overruled the objection and said:

'In the first place, no request for instruction was made as to the four elements set forth in the cases that are cited in the notes on use and comments in SJI 14.01. Although, counsel did argue it to the jury, I feel that is a jury question as to whether or not it come (sic) to rest.'

Defense counsel had moved again for directed verdict and the motion was again denied. After the jury verdict was returned, the defendants moved for a new trial or for judgment notwithstanding the verdict. These motions were denied by the trial court in a written opinion. As to the applicability of SJI 14.01, the trial...