Conroy v. Harrison

118 N.W.2d 383, 368 Mich. 310, 1962 Mich. LEXIS 331

Opinions

Kavanagh, J.

Plaintiffs appeal from judgments ■ of no cause for action, in these consolidated cases, ■entered by the trial court following trial without .a jury in the Calhoun county circuit court.

The trial court found that the collision between the parties was caused by a sudden emergency, not due in any respect to the fault or negligence of defendant ; and that the emergency, which was caused by a third party, was the sole and proximate cause of :said collision.

The court further found that plaintiffs had failed to meet the burden of proof on the controlling question of negligence of the defendant.

The nature of these suits is fully set forth in paragraph 6 of the duplicate declarations filed by the ■plaintiff driver and the plaintiff passenger against the defendant, which reads as follows:

“That at said time and place the said plaintiff was preparing to make a right-hand turn from the said West Michigan avenue into the said Lamora avenue, .and that as she neared the said intersection she operated the said vehicle near the northerly curb of the said West Michigan avenue and was signaling her intentions of making a right-hand turn, and as-she was commencing to make the said right-hand turn a pedestrian commenced to cross the said Lamora avenue at the northerly side and the said plaintiff stopped the vehicle as she was commencing to-make the said right-hand turn, and while her car was so stopped the said defendant permitted the front portion of his said vehicle to collide with the rear-portion of the said vehicle operated by the said plaintiff.”

Defendant’s answer to paragraph 6 of the declaration is as follows:

“This defendant admits the allegations contained in paragraph 6 of said declaration.”

The pretrial statement confirmed the foregoing status of the pleadings. It was not modified at or before the trial under section 4 of Court Rule No-35 (1945)

Footnotes

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* and accordingly controlled the subsequent course of the 2 actions. The pretrial statement provided :

“Counsel announces satisfied with their own respective pleadings, that the same raises the pertinent issues involved and that there will be no further amendments, alterations, et cetera, to the same.”

Defendant’s trial brief advised the trial judge as follows:

“This accident happened on July 7, 1954 at the-intersection of W. Michigan ave. and Lamora ave. in the city of Battle Creek, Calhoun county, Michigan.

“Both cars had been proceeding in a westerly direction, both were traveling within the controlling speed limits and defendant was traveling at a reasonable distance to the rear of plaintiffs’ car.

“Plaintiff driver had signaled an intention of turning to the right and was making a gradual turn in that direction.

“Defendant glanced in the rear view mirror to observe the approaching traffic preparatory to passing plaintiffs’ car. A small child darted out in front •of plaintiffs’ car and it was brought to a sudden and unexpected stop. Defendant turned hack to look •ahead and saw the unexpected and sudden stop of plaintiffs’ car and applied the brakes hut struck plaintiffs’ car from the rear.”

The trial judge, citing no authority, held that both drivers were confronted by a sudden emergency not of their own negligent making, and concluded that, therefore, the plaintiffs had not sustained the burden •of proof of defendant’s negligence. He ordered judgments in favor of defendant, from which judgments plaintiffs appeal.

The only persons testifying at the trial were Cleda Kruger Brooks, plaintiff driver, and Boss Harrison, defendant.

The only conflict in the pleadings, admissions, and the testimony of Mrs. Brooks and defendant occurs in the testimony of defendant as to when the arm signal was given. He testified plaintiff driver did not extend her arm until she actually stopped her vehicle.

The trial judge erred in finding defendant free from negligence. The defendant’s admissions, both by pleadings and testimony, establish that his inattention to duty ahead was the proximate cause of this collision and of such damages as plaintiffs may have suffered.

The testimony supports, rather than opposes, the statutory presumption that defendant was negligent. :(CLS 1956, § 257.402 [Stat Ann 1960 Bev § 9.2102].)

Justice Souris in the majority opinion in Garrigan v. LaSalle Coca-Cola Bottling Co., 362 Mich 262, 266, a similar rear-end collision case, said:

“Indeed, it may he said that plaintiff’s own testimony tends to support, rather than oppose, the-statutory presumption of his own negligence.”

In the case before us, the weight of the testimony and the binding admissions of defendant in the-pleadings, supplement rather than oppose the statutory presumption of negligence.

The judgments for defendant must be reversed as-contrary to law as well as to the clear preponderance-of the evidence.

There being no indication of further proofs which might tend to excuse defendant, and his negligence-having been established by unreserved admissions, the trial court on remand will proceed to trial of the-issue of damages only and will enter judgments accordingly.

Reversed and remanded. Plaintiff shall have-costs.

Black, Souris, Otis M. Smith, and Adams, JJ.,. concurred with Kavanagh, J.

As amended. See 352 Mieli xv. — Reporter.