[89]*89Souris, J.
Plaintiffs’ car had stopped in response to a red traffic light. Defendant had stopped his car immediately behind plaintiffs’. When the traffic signal became green, both cars started in motion, plaintiffs’ turning right and defendant’s moving straight ahead. Just before completion of the right turn, plaintiffs’ car stopped suddenly and was struck from behind by defendant’s. Plaintiffs are husband and wife, Mr. Bishop, being the driver.
Mrs. Bishop started suit for damages for the injuries she incurred. Mr. Bishop sued for recovery of the cost of repairing his car and of his wife’s medical expenses and damages for his loss of his wife’s services. The cases were consolidated for trial by consent of all parties and the jury returned a verdict of $1,000 for Mrs. Bishop and found no cause for action in her husband’s suit.
Contributory negligence by Mr. Bishop was pleaded as a defense by defendant, and it was an issue submitted in the trial court’s charge for jury determination. In view of the verdicts returned, it is a fair inference that the jury found defendant action-ably negligent and, while denying Mr. Bishop recovery because it found him to be contributorily negligent, it awarded Mrs. Bishop a judgment against defendant because her host driver’s contributory negligence may not be imputed to her. Bricker v. Green, 313 Mich 218 (163 ALR 697). This is the only logical explanation of the verdicts, assuming they were made within the scope of the trial court’s charge to the jnry.
Both plaintiffs appeal, claiming that there was no evidence whatever of Mr. Bishop’s contributory negligence and that injection of that issue in the court’s charge was not only prejudicial to him, but in the absence of an instruction on damages where concurrent negligence results in a single indivisible injury, the charge was prejudicial to Mrs. Bishop as [90]*90evidenced by what plaintiffs consider to be a totally inadequate award of damages to her. In effect, they claim (1) that Mr. Bishop, as a matter of law, was not guilty of contributory negligence and, (2) that if the evidence supported a finding of Mr. Bishop’s contributory negligence, the trial court should have instructed the jury that Mrs. Bishop was entitled to recover her full damages, if any, from defendant notwithstanding the fact that Mr. Bishop may be found to have been contributorily negligent.
In Banzhof v. Roche, 228 Mich 36, 41, this Court said:
“It is elementary that where injury results from the concurrent negligence of 2 or more, each proximately contributing to the result, recovery may be had against 1 or more, although but 1 satisfaction may be had. If the negligence of the defendant company caused the injury, it is not absolved from liability because the concurrent negligence of Roche contributed to the result.”
See, also, Barkman v. Montague, 297 Mich 538; 1 Shearman & Redfield on Negligence (6th ed), § 122; and Maddux v. Donaldson, 362 Mich 425, quoting from 1 Cooley, Torts (3d ed), p 247, Prosser, Torts (2d ed), p 226, and 4 Restatement, Torts, § 879. Plaintiffs’ counsel was entitled to request the trial judge to instruct the jury that if it found defendant guilty of negligence which was a proximate cause of Mrs. Bishop’s injuries, even if Mr. Bishop were found by the jury to have been contributorily negligent, Mrs. Bishop was entitled to recover a judgment against defendant for her entire damage. Had request been made, the trial judge would have erred had he refused to give such an instruction. However, no such request was made by counsel. Our problem is: Was the trial court’s omission of such instruction, in the absence of a request therefor, reversible error %
[91]*91Not infrequently these days, our trial courts hear automobile negligence cases like these of the Bishops consolidated for trial by consent for the convenience of the parties, of the court, and of the public. One inherent danger in consolidation of such cases is that breaches of duty by one party plaintiff may erroneously be attributed by the jury to another party plaintiff, even when care is exercised by the trial court in his charge to the jury to keep the legal rights of the litigants separate. For example, in this case, contributory negligence of plaintiff driver might have been imputed to Mrs. Bishop, a guest passenger, had the court not given a protective instruction based upon Bricker v. Green, supra. Once the court submitted the question of Mr. Bishop’s contributory negligence to the jury, it was an essential requirement of fair and full instruction on the law applicable to Mrs. Bishop’s case that he also instruct the jury that Mr. Bishop’s contributory negligence, if any, should not be imputed to Mrs. Bishop, a guest passenger, and he did so. Had he failed to so instruct on such an important element of the law applicable to the facts in this particular case, he would have committed reversible error even though no request were made to so charge. See Martiniano v. Booth, 359 Mich 680, 688-693, 695.
In consolidated actions such as these, it is not enough that the judge instruct the jury on each plaintiff’s right to recover; to fulfill his obligation1 to instruct the jury as to the law applicable to such cases, he must also instruct the jury properly and fully on each measure of damages each plaintiff is entitled to recover if liability of the defendant to him be established. It would be a futile act to require an instruction on such an important element of the law as Mrs. Bishop’s right to recover against defendant [92]*92notwithstanding her coplaintiff’s contributory negligence, without also requiring an instruction on the equally important element of the law that she is entitled to recover her full damages against defendant notwithstanding such contributory negligence by a coplaintiff; in short, that the jury must not attempt to apportion her damages between her coplaintiff and defendant. She was entitled to such an essential instruction whether or not her counsel requested it. In the absence of such an instruction, it is a fair inference that once the jury found Mr. Bishop negligent and that his negligence contributed to Mrs. Bishop’s injuries, it failed to assess against defendant that portion of Mrs. Bishop’s damages it charged to her husband’s negligence. That is the logical course, and since nowhere in the court’s instructions was the legal course prescribed, we must assume that the jury followed the logical course. Mrs. Bishop is entitled to a new trial.
Mr. Bishop’s appeal presents a more fundamental problem of liability. Mr. Plumb, the defendant, testified that he stopped behind Mr. Bishop’s car heading south while the traffic light was red. When the light became green, he saw a pedestrian step off the southwest curb of the intersecting street just as Mr. Bishop began his right turn onto that street. There was a truck at Mr. Plumb’s left, barring his moving into the adjoining lane to get around plaintiffs’ turning car. Mr. Plumb averted his gaze from straight ahead to his left to see “how close” the truck was and:
“Well, when I glanced back, Bishop had stopped. Well, I applied the brakes and at the same time we hit.”
On cross-examination, he testified that the moment he glanced back, the rear stop lights on Mr. Bishop’s [93]*93car went on and it stopped instantly without leaving tire skidmarks.
Free access — add to your briefcase to read the full text and ask questions with AI
[89]*89Souris, J.
Plaintiffs’ car had stopped in response to a red traffic light. Defendant had stopped his car immediately behind plaintiffs’. When the traffic signal became green, both cars started in motion, plaintiffs’ turning right and defendant’s moving straight ahead. Just before completion of the right turn, plaintiffs’ car stopped suddenly and was struck from behind by defendant’s. Plaintiffs are husband and wife, Mr. Bishop, being the driver.
Mrs. Bishop started suit for damages for the injuries she incurred. Mr. Bishop sued for recovery of the cost of repairing his car and of his wife’s medical expenses and damages for his loss of his wife’s services. The cases were consolidated for trial by consent of all parties and the jury returned a verdict of $1,000 for Mrs. Bishop and found no cause for action in her husband’s suit.
Contributory negligence by Mr. Bishop was pleaded as a defense by defendant, and it was an issue submitted in the trial court’s charge for jury determination. In view of the verdicts returned, it is a fair inference that the jury found defendant action-ably negligent and, while denying Mr. Bishop recovery because it found him to be contributorily negligent, it awarded Mrs. Bishop a judgment against defendant because her host driver’s contributory negligence may not be imputed to her. Bricker v. Green, 313 Mich 218 (163 ALR 697). This is the only logical explanation of the verdicts, assuming they were made within the scope of the trial court’s charge to the jnry.
Both plaintiffs appeal, claiming that there was no evidence whatever of Mr. Bishop’s contributory negligence and that injection of that issue in the court’s charge was not only prejudicial to him, but in the absence of an instruction on damages where concurrent negligence results in a single indivisible injury, the charge was prejudicial to Mrs. Bishop as [90]*90evidenced by what plaintiffs consider to be a totally inadequate award of damages to her. In effect, they claim (1) that Mr. Bishop, as a matter of law, was not guilty of contributory negligence and, (2) that if the evidence supported a finding of Mr. Bishop’s contributory negligence, the trial court should have instructed the jury that Mrs. Bishop was entitled to recover her full damages, if any, from defendant notwithstanding the fact that Mr. Bishop may be found to have been contributorily negligent.
In Banzhof v. Roche, 228 Mich 36, 41, this Court said:
“It is elementary that where injury results from the concurrent negligence of 2 or more, each proximately contributing to the result, recovery may be had against 1 or more, although but 1 satisfaction may be had. If the negligence of the defendant company caused the injury, it is not absolved from liability because the concurrent negligence of Roche contributed to the result.”
See, also, Barkman v. Montague, 297 Mich 538; 1 Shearman & Redfield on Negligence (6th ed), § 122; and Maddux v. Donaldson, 362 Mich 425, quoting from 1 Cooley, Torts (3d ed), p 247, Prosser, Torts (2d ed), p 226, and 4 Restatement, Torts, § 879. Plaintiffs’ counsel was entitled to request the trial judge to instruct the jury that if it found defendant guilty of negligence which was a proximate cause of Mrs. Bishop’s injuries, even if Mr. Bishop were found by the jury to have been contributorily negligent, Mrs. Bishop was entitled to recover a judgment against defendant for her entire damage. Had request been made, the trial judge would have erred had he refused to give such an instruction. However, no such request was made by counsel. Our problem is: Was the trial court’s omission of such instruction, in the absence of a request therefor, reversible error %
[91]*91Not infrequently these days, our trial courts hear automobile negligence cases like these of the Bishops consolidated for trial by consent for the convenience of the parties, of the court, and of the public. One inherent danger in consolidation of such cases is that breaches of duty by one party plaintiff may erroneously be attributed by the jury to another party plaintiff, even when care is exercised by the trial court in his charge to the jury to keep the legal rights of the litigants separate. For example, in this case, contributory negligence of plaintiff driver might have been imputed to Mrs. Bishop, a guest passenger, had the court not given a protective instruction based upon Bricker v. Green, supra. Once the court submitted the question of Mr. Bishop’s contributory negligence to the jury, it was an essential requirement of fair and full instruction on the law applicable to Mrs. Bishop’s case that he also instruct the jury that Mr. Bishop’s contributory negligence, if any, should not be imputed to Mrs. Bishop, a guest passenger, and he did so. Had he failed to so instruct on such an important element of the law applicable to the facts in this particular case, he would have committed reversible error even though no request were made to so charge. See Martiniano v. Booth, 359 Mich 680, 688-693, 695.
In consolidated actions such as these, it is not enough that the judge instruct the jury on each plaintiff’s right to recover; to fulfill his obligation1 to instruct the jury as to the law applicable to such cases, he must also instruct the jury properly and fully on each measure of damages each plaintiff is entitled to recover if liability of the defendant to him be established. It would be a futile act to require an instruction on such an important element of the law as Mrs. Bishop’s right to recover against defendant [92]*92notwithstanding her coplaintiff’s contributory negligence, without also requiring an instruction on the equally important element of the law that she is entitled to recover her full damages against defendant notwithstanding such contributory negligence by a coplaintiff; in short, that the jury must not attempt to apportion her damages between her coplaintiff and defendant. She was entitled to such an essential instruction whether or not her counsel requested it. In the absence of such an instruction, it is a fair inference that once the jury found Mr. Bishop negligent and that his negligence contributed to Mrs. Bishop’s injuries, it failed to assess against defendant that portion of Mrs. Bishop’s damages it charged to her husband’s negligence. That is the logical course, and since nowhere in the court’s instructions was the legal course prescribed, we must assume that the jury followed the logical course. Mrs. Bishop is entitled to a new trial.
Mr. Bishop’s appeal presents a more fundamental problem of liability. Mr. Plumb, the defendant, testified that he stopped behind Mr. Bishop’s car heading south while the traffic light was red. When the light became green, he saw a pedestrian step off the southwest curb of the intersecting street just as Mr. Bishop began his right turn onto that street. There was a truck at Mr. Plumb’s left, barring his moving into the adjoining lane to get around plaintiffs’ turning car. Mr. Plumb averted his gaze from straight ahead to his left to see “how close” the truck was and:
“Well, when I glanced back, Bishop had stopped. Well, I applied the brakes and at the same time we hit.”
On cross-examination, he testified that the moment he glanced back, the rear stop lights on Mr. Bishop’s [93]*93car went on and it stopped instantly without leaving tire skidmarks.
He further testified that had Mr. Bishop proceeded another 1 to 1-1/2 feet into his turn, there would have been room enough for southbound traffic to pass without hitting the Bishop car. According to defendant, the pedestrian was 4 to 5 feet across the. easthound lane of the 2-lane intersecting street2 at the time of the collision, and he claimed that Mr. Bishop could have completed his turn without endangering the pedestrian. 1
Mr. Bishop, on the other hand, relied at the trial upon the statute3 imposing upon a driver making a turn a duty to yield the right-of-way to a pedestrian lawfully in a crosswalk. He claims that stopping his car to yield the right-of-way to the pedestrian lawfully in the crosswalk could not constitute an act of negligence on his part in this action and, therefore, that the trial court erred in submitting the question of his contributory negligence to the jury. We cannot agree.
It is true that the statute required Mr. Bishop to give the pedestrian in the crosswalk positive preferential treatment. See Bartlett v. Melzo, 351 Mich 177, 187, where this Court so characterized a similar city ordinance. As was further said in that case, [94]*94the care required of the motorist goes beyond the common-law rule of ordinary care to which the pedestrian is entitled even without such legislative mandates. Indeed, whenever an automobile collides with a pedestrian lawfully within a crosswalk, it may well be that the motorist is guilty of violating the statutory standard of care, in the absence of extraordinary circumstances such as a deliberate suicidal movement by the pedestrian or the more familiar ¡situation where a pedestrian suddenly panics and moves backward into the path of an automobile. See Switzer v. Baker, 178 Iowa 1063 (160 NW 372) People v. McLachlan, 36 Cal App2d 754 (93 P2d 280); and Giles v. Happely, 123 Cal App2d 894 (267 P2d 1051). But in the case at bar, there was ample competent testimony to support a jury’s finding that Mr. Bishop could have completed his turn in safety without endangering the pedestrian or interfering with his right-of-way. Under these circumstances, it was for the jury to determine whether or not' Mr. Bishop was guilty of contributory negligence in stopping as he did. The trial judge’s charge correctly submitted this question to the jury. We find no prejudicial error in the trial of Mr. Bishop’s case.
Accordingly, the verdict and judgment in Mrs. Bishop’s case must be set aside and the case remanded for new trial. The judgment in Mr. Bishop’s case is affirmed.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J.