Hett v. Duffy

78 N.W.2d 284, 346 Mich. 456, 1956 Mich. LEXIS 338

Opinions

Boyles, J.

Plaintiff, as administratrix of the estate of her deceased husband Thomas Hett, sued the defendants, under the so-called death act

Footnotes

•

* for the death of her husband resulting from an automobile accident. The case was heard by jury, plaintiff had a substantial verdict and judgment, and the defendants, the owner and the driver, respectively, of the automobile involved, appeal.

Appellants contend that the plaintiff’s decedent was guilty of contributory negligence as a matter of law. That is the only question which controls decision here. At the close of the plaintiff’s proofs, and again at the close of all the proofs, the defendants moved for a directed verdict on that ground. The court reserved decision on the motions and, under appropriate instructions, submitted to the jury the issues of fact as to whether the defendants were guilty of negligence and whether plaintiff had established freedom from contributory negligence. The verdict indicates the conclusions of the jury on both questions.

Defendants’ motions for judgment non obstante veredicto and for a new trial also were denied. However, appellants’ brief does not present here the question that the verdict was against the great weight of the evidence nor does their brief argue the question. We do not have that question here for decision.

In considering the facts, the plaintiff’s averments in her amended declaration, the defendants’ answer to the amended declaration, and admissions made at the pretrial, a statement of which is in the record, must be weighed. The briefs of both parties discuss the facts at length.

Southfield road is a north and south boulevard in Detroit. The accident occurred on the pavement in the westerly (southbound) 2-lane part of the boulevard. Joy road crosses Southfield east and west about 400 feet north from the point where the accident occurred on Southfield. At about 9:35 o’clock on the night of June 18,1951, plaintiff’s decedent was struck in the westerly lane of the boulevard by a southbound automobile owned by one of the defendants and operated by her brother, the other defendant, with the owner’s permission and consent. Decedent died 12 hours later. There were 2 westerly 10-foot concrete lanes for the southbound traffic on the boulevard. There was a traffic light at the intersection of Joy road and the boulevard at which 2 automobiles, side by side, southbound on the boulevard, had stopped for the red light to change. Defendants’ automobile was the westerly one of these 2. The other (easterly) car will hereafter be denoted as car #2. A third car, also southbound, was behind the defendants’ automobile, driven by one Tuskey, who later testified in the case. When the light changed, the 3 cars proceeded south on South- field. The defendants’ automobile in the westerly lane went along more slowly; the car at the left of defendants’ automobile (car #2), moving more rapidly, had passed defendants’ car and was southbound in the easterly lane ahead of it, while plaintiff’s decedent was on the 42-foot gravel, grass and clay parkway separating the north- and southbound traffic lanes on the boulevard. He was about to proceed west across the southbound lanes. As soon as the #2 car, which was moving south closer to decedent, had passed him, it exposed the defendants’ approaching automobile plainly there to be seen by plaintiff’s decedent. Decedent walked on west, behind the #2 car as soon as it had passed by. However, he did not succeed in crossing the pavement but was struck by the right front fender of defendants’ automobile. Plaintiff’s claim in her amended declaration “that Thomas Hett was struck while he was on the right shoulder of the westerly pavement of the highway” finds no support in the testimony.

Plaintiff in her amended declaration alleged that the decedent “at the time he crossed the westerly part of Southfield road [he] did not see the defendant and his car; * * * that at the time the decedent crossed the western part of Southfield road, the defendant Edward Anthony Duffy and his car were still on Joy road, and the decedent, therefore, could not see him.” Unfortunately for plaintiff, the testimony conclusively shows that even if, as claimed by plaintiff, the defendants’ car was still on Joy road at the time the decedent crossed the western part of Southfield, and that the defendants’ automobile then made a left turn from Joy road south onto Southfield, still plaintiff’s decedent could, and should, have seen the defendants’ automobile approaching him. It would then have been on South-field, within the decedent’s plain sight for over 400 feet, if he had looked. If plaintiff’s decedent had looked and seen the defendants’ approaching automobile, he could, and should, have stopped as he started across the western lanes of Southfield after car #2 had passed him, and then would not have been struck when he continued to cross Southfield in front of defendants’ automobile. In that connection, the circuit judge who heard the pretrial statements certified to the admission made at the pretrial, that

“Plaintiff pleads and admits that he did not see defendant’s car at any point south of Joy road.”

We conclude that the pleadings, the admissions and the testimony in the record convincingly establish that plaintiff’s decedent was guilty of contributory negligence as a matter of law when he proceeded to cross the westerly lane of the southbound 2 lanes of Southfield road in front of the defendants’ automobile without looking to see the defendants’ car which was approaching in plain sight. He would not have been hit, had he not attempted to cross the westerly (southbound) lane on Southfield diretetly in front of it.

In the absence of such proof to show that plaintiff’s decedent was free from contributory negligence, the court should have granted the defendants’ motions for a directed verdict, or for a judgment for the defendants notwithstanding the verdict.

Is the question of plaintiff’s decedent’s right to a presumption of due care properly before this Court; and if so, if answered, would it be controlling of the result?

Inter alia, the trial court carefully charged the jury on the issues of negligence, contributory negligence, and proximate cause, and submitted to the jury these issues of fact, for its consideration. As to that, the plaintiff-appellee, in her brief filed here, contends it was proper. The defendants-appellants, as hereinbefore noted, in motions for a directed verdict, for judgment non obstante veredicto, and for a new trial, claimed that the plaintiff had failed to prove freedom from contributory negligence as a matter of law.

The testimony to show the contributory negligence of plaintiff’s decedent was received without objection. The defendants-appellants now attempt to raise here on appeal, for the first time, this issue:

“Issue No 2 — Did the plaintiff have the benefit of a presumption of due care on the part of her decedent?”

It is difficult to understand how the defendants-appellants consider an answer to this question of any controlling importance. In fact, counsel for appellants, in their brief, do not now claim error in that respect; on the contrary, they concede:

“This question was also ruled upon favorably to the defendants and appellants by the trial court and the plaintiff and. appellee has not claimed error in regard thereto by way of cross appeal.”

It is true that the plaintiff has not raised the question here and has not cross-appealed. Under the circumstances, anything this Court might now say on the question of law as to presumption of due care would not be controlling of decision. On the contrary, our conclusion here that plaintiff’s decedent was guilty of contributory negligence as a matter of law controls the outcome, and any discussion of the issue of presumption of due care would merely be obiter dicta.

“Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor- essential to determination of the case in hand, are, however illuminating, but obiter dicta and lack the force of an adjudication.”.

People v. Case (syllabus), 220 Mich 379 (27 ALR 686).

See, also, Robinson v. Gordon Oil Co., 266 Mich 65, 71.

Reversed without new trial and remanded for entry of judgment of no cause for action, with costs to appellants.'

Dethmers, C. J., and Sharpe, Kelly, and Carr, JJ., concurred with Boyles, J.

CL 1948, § 691.581 (Stat Ann 1953 "Cum Supp § 27.711). '