Clingerman v. Bruce

160 N.W.2d 614, 11 Mich. App. 3, 1968 Mich. App. LEXIS 1248

Opinions

Quinn, J.

November 25, 1963, plaintiff was involved in a near head-on collision with a truck owned by Robert T. Bruce and operated by an employee of the defendant partnership in the course of his employment. Plaintiff was proceeding south on M-15 in the northerly portion of Goodrich, Genesee county, at the time of the accident, and the vehicle of defendants was going north on the same highway. Plaintiff sued to recover for the damages he sustained in such accident, and he recovered a jury verdict of $10,000. Judgment entered thereon and defendants moved for a new trial, which was denied. Defendants appeal from the judgment and from denial of their motion for new trial.

The errors assigned by defendants as a basis for requesting this Court to grant them a new trial relate to a requested instruction, allegedly not given, errors in instructions given, admission of improper evidence, and that the verdict was so excessive as to indicate prejudice or sympathy and that it was contrary to the great weight of the evidence.

Due to the nature of the errors assigned, we find it unnecessary to recite fully the factual aspects of the case and will confine factual discussion to facts pertinent to the issues discussed.

Defendants first ask, “Did the trial court err in not giving defendants’ theory of the case as set forth in defendants’ request to charge No. 1?”

Footnotes

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* Defend ants pleaded the theory indicated in this request and there was evidence in the record to support it. They were entitled to an instruction on this theory (Camden Fire Insurance Company v. Kaminski [1958], 352 Mich 507), but there is no error in refusing to give the instruction in the exact language requested if the court does instruct on the point in its own language. (Schattilly v. Yonker [1957], 347 Mich 660.) Here the court charged on this point as follows:

“In this action, the plaintiff, Mr. Clingerman, is seeking an award of money from Mr. Petersen and the Bruce Construction Company, charging that Mr. Petersen was negligent in the operation of the pickup truck, that such negligence was a proximate cause of the injury, and that damages resulted. The defendants deny any negligence, deny the negligence, if there was any, was a proximate cause of the damages, and in addition the defendants affirmatively claim that Mr. Clingerman was guilty of what we call contributory negligence which caused the damage, and therefore he cannot recover.”

While more succinct than defendants desired, this instruction does cover defendants’ theory, and it is discretionary with the trial court to comment on or to detail facts supporting such theory. G-CR 1963, 516.1. This was not a protracted trial, the issues were clear cut and uncomplicated, the 2 drivers involved were the only witnesses to the accident, and it was not an abuse of discretion for the trial judge to say no more than he did on defendants’ theory, especially when plaintiff’s theory was treated in a similar manner.

Defendants rely on Snyder v. United Benefit Life Insurance Company (1963), 371 Mich 36, to sustain their contention that it was reversible error for the trial court to refuse to give their requested instruction No. 1. We do not so read Snyder in which the reversible error found in the charge was its unfairness to defendant because the trial judge detailed evidence supporting plaintiff’s theory and failed to detail defendant’s opposing evidence, though requested to do so.

The following statement is found in the court’s charge with reference to contributory negligence:

“However, negligence or contributory negligence of the plaintiff, if you find there was some, would not bar the right of the plaintiff to recover unless you find that plaintiff’s contributory negligence was a proximate cause of the damage, and plaintiff’s contributory negligence is legally contributory and a proximate cause only if it is a substantial factor in bringing about his harm.” (Emphasis supplied.)

It is defendants’ claim that because the trial court failed to make a similar statement with respect to defendants’ negligence being a proximate cause of the accident, the charge fixed a higher standard for determining what contributory negligence barred the action than it did for determining what negligence supported the action. We cannot agree with this position. In defining proximate cause with respect to the defendants’ negligence, the court stated:

“A proximate cause, when it is legally significant is the cause which in its natural and continual sequences, unbroken by any new cause, produces an event, without which the event would not have occurred. In short, it’s the real cause, the actual cause, ■with, no other cause intervening to bring injury about.”

It is inherent in this definition that to support the action defendants’ negligence must be a “substantial factor” in bringing about the harm to plaintiff.

In its charge, the trial court read part of CLS 1961, § 257.647 (Stat Ann 1960 Rev § 9.2347) which prescribes the duties of a driver intending to turn at an intersection. Since the accident did not occur at an intersection, defendants “fail to see how this charge could be relevant under the circumstances of this case, and the injection of this statute into the instructions merely confuses the issue as to what defendant Petersen should or should not have done under the circumstances.” ¥e can accept this quoted statement as true and remain unconvinced on this record that the inclusion in the charge of part of the above statute vías an error that materially affected substantial rights of defendants. (See G-CR 1963, 13 and 527.1.)

During cross-examination of plaintiff’s medical witness by defendants’ counsel, reference was made to a written report by the witness to plaintiff’s counsel, a copy of which had also been furnished to defendants’ counsel. It is not clear from the record before us whether this reference was for the purpose of refreshing the witness’ recollection, as contended by defendants, or to establish a prior inconsistent statement, as contended by plaintiff. On redirect examination, plaintiff offered the report in evidence, and it was received over defendants’ objection. To support this alleged reversible error, defendants cite Koehler v. Abey (1911), 168 Mich 113, and Grusiecki v. Jaglay (1932), 260 Mich 9. Bach case held it was not error to exclude memoranda ; neither held it was reversible error to admit it, and neither the record nor defendants’ brief dem onstrates that admission of the report materially affected substantial rights of defendants.

Finally defendants say the verdict was so excessive as to indicate prejudice or sympathy and the verdict was against the great weight of the evidence. There is record evidence of physical injuries which limited plaintiff’s activities to time of trial and evidence that such injuries were permanent. It is the jury’s province to believe or disbelieve such evidence. The jury chose to believe it, and this element of damage precludes us from saying the verdict was so excessive or so against the weight of the evidence that a new trial should be ordered.

Affirmed, with costs to plaintiff.

McGregor., J., concurred with Quinn, J.

“It is the theory of the defendants that defendant Petersen was driving north on M-15 and had started to turn aeross the center line to enter a driveway leading to the new Goodrich hospital on the west side of M-15. When Petersen’s truck reached a point approximately 3-é feet over the center line, he hesitated for a moment, being uncertain as to whether or not the driveway was blocked by construction work, and at this time he looked to the north and saw plaintiff’s automobile coming over the hill from the north. Defendant Petersen then attempted to return to the east side of the highway at a speed of about 10 miles per hour, but never made it all the way back to his own side of the road. When the plaintiff’s automobile was a distance of somewhere between 150 to 200 feet away, the front of the ear dipped as though the brakes were applied, and the ear started to slide in a diagonal direction toward the east side of the road. The plaintiff’s automobile started to cross the center line something more than 100 feet away and never deviated from its course. When defendant Petersen realized that a collision was going to occur, he jammed on his brakes and was at a standstill, or almost at a standstill, 2 or 3 feet over the center line, at the time of the impact.

“At the time of the impact the Ford ear was more on the east side of the center line than on the west side.

“The defendants further contend that there was no necessity in the plaintiff eoming across the center line, because there was ample room for him to have passed in safety if he had stayed on his own side of the road and had kept his automobile under control by reducing his speed.”