Hughes v. Polk

199 N.W.2d 224, 40 Mich. App. 634, 1972 Mich. App. LEXIS 1262
CourtMichigan Court of Appeals
DecidedMay 24, 1972
DocketDocket 10568
StatusPublished
Cited by21 cases

This text of 199 N.W.2d 224 (Hughes v. Polk) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughes v. Polk, 199 N.W.2d 224, 40 Mich. App. 634, 1972 Mich. App. LEXIS 1262 (Mich. Ct. App. 1972).

Opinions

McGregor, P. J.

This is an automobile negligence case. The salient facts are as follows: Plaintiff Mary Beth Rowe is the daughter of plaintiff Mary Hughes. Plaintiff Rowe was seven months pregnant at the time of the accident, and she and her parents were concerned about her condition because she had previously had three miscarriages. On December 20, 1966, plaintiff Rowe was visiting at her mother’s home on Eberwhite Boulevard. The boulevard was very slippery due to a heavy snowfall the previous night, and the street had not been cleared nor salted. At approximately 4:30 p.m. plaintiff Rowe backed her car out of the Hughes’ driveway and proceeded north to the intersection at Liberty Street, where she stopped and waited to make a left turn onto Liberty Street.

Eberwhite Boulevard is four blocks long, with median strips dividing two northbound lanes from two southbound lanes. The defendant, a resident of Gagetown, Michigan, but a former student in Ann Arbor, was visiting friends on Eberwhite Boulevard. He was no stranger to Eberwhite Boulevard, having traversed it numerous times prior to December 20, 1966. On that day, at about 4:30 p.m., defendant left his friends’ home, proceeded south on Eberwhite Boulevard, circled around the median, and then proceeded north on Eberwhite Boulevard. As he reached the intersection of Wood-bridge Boulevard and Eberwhite Boulevard, defendant was in a position 300 feet from the Liberty Street intersection and would have had a clear view of that intersection. This last fact was stipulated to by defense counsel.

[637]*637The defendant stated that he was driving at 15 miles per hour and had traveled 100 to 200 feet past the Woodbridge Boulevard intersection before he noticed plaintiff Rowe’s stopped vehicle. He then traveled another 25 to 30 feet before he applied his brakes, which did not hold, due to the ice on the roadway, and defendant slid into plaintiff Rowe’s car. The resulting crash caused her car to be pushed out into the southward lanes of Liberty Street. At no time did the defendant sound his horn or make visible attempts to swerve out of the way. There is a dispute as to the force of the crash. There is also a dispute as to whether the defendant put his car in "park”, set his emergency brake, or put on his emergency flashers.

In any event, the defendant dashed from his car to assist plaintiff Rowe, who had panicked and was attempting to scramble out of her car. Plaintiff Hughes, having seen the accident, rushed to aid her daughter. She took the most direct route and passed between her daughter’s car and the car of the defendant. At the exact instant that she passed between the two cars, a third car driven by Ralph Lewis, collided with the defendant’s car and the resultant crash knocked plaintiff Hughes to the ground.

Plaintiff Hughes thereafter developed a large hematoma on her right leg; this was followed by thrombophlebitis and eventually a massive pulmonary embolism. Plaintiff Rowe’s child was delivered in a normal birth.

Prior to commencing suit against the defendant, plaintiff Hughes settled her claim with Ralph Lewis for $35,000.

After hearing the evidence, arguments of counsel, and instructions of the court, the six-man jury returned unanimous verdicts of "not guilty”.

[638]*638Plaintiffs appeal from judgments of no cause of action for each of the plaintiffs, entered by the trial court pursuant to the jury’s verdict. We reverse for the reasons stated herein.

I.

In response to the question, "Would you consider yourself a safe driver on December 20, 1966?”, the defendant replied, "Yes, I did”. The trial judge refused to allow plaintiffs to further cross-examine defendant with respect to his traffic convictions. In Sting v Davis, 384 Mich 608, 613-614 (1971), the Supreme Court stated:

"GCR 1963, 607 was adopted by this Court in accordance with its rulemaking powers as to evidentiary matters. The central issue in practically every contested motor vehicle accident case is whether defendant-driver was guilty of negligence and, if the plaintiff was the driver of the other motor vehicle, whether he was free from contributory negligence. As to the defendant, the question which confronts the jury is whether to believe the claim of the plaintiff that the defendant was negligent or the claim of the defendant that he was not negligent and, as to a plaintiff-driver, the issue is just the reverse. Almost invariably, as in this case, the defendant asserts, T did not drive in a negligent fashion.’ If the plaintiff was also a motor vehicle driver, as in this case, he makes the same assertion as to his driving upon finding himself accused of being the responsible party because of negligent driving. On the issue of whom to believe, the driving record of a plaintiff or of a defendant can become a crucial evidentiary factor. That driving history, both before and after the accident, whether it be for serious or minor infractions of the vehicle code, can have a vital bearing in enabling a jury to determine the truth of a plaintiffs or defendant’s testimony as to the exercise of due care.
"We conclude that under GCR 1963, 607, as presently adopted by this Court, a trial judge has no discretion to [639]*639exclude cross-examination with regard to the driving history of a plaintiff-driver or of a defendant-driver, such cross-examination being proper to test the credibility of the witness’ testimony with regard to the central fact issue in the case. "(Emphasis added.)

It was error for the trial court to refuse to allow plaintiffs to cross-examine defendant regarding his traffic convictions for purposes of impeachment, where the credibility of defendant’s testimony as to his exercise of due care is at issue. See also Taylor v Walter, 385 Mich 599, 600 (On Rehearing, 1971), adopting Justice Black’s opinion in Taylor v Walter, 384 Mich 114, 117-120 (1970); cf. Kuhnee v Miller, 37 Mich App 649 (1972).

II.

The trial judge charged the jury as follows:

"[I]f you find that the defendant was confronted with a sudden emergency not of his own making and if you find that he used ordinary care and was still unable to avoid the violation because of such emergency, then his violation [of the assured-clear-distance statute, MCLA 257.627; MSA 9.2327(a)] is excused.”

Plaintiffs objected to this instruction.

In VanderLaan v Miedema, 385 Mich 226, 231-232 (1971), the Supreme Court discussed the sudden emergency doctrine as follows:

"Was there evidence to support the sudden emergency instruction of the trial court?
"Under the rear-end collision statute a rebuttable presumption arises that the offending driver is prima facie guilty of negligence. Petrosky v Dziurman (1962), 367 Mich 539, 543; Garrigan v LaSalle Coca-Cola Bottling Co (1961), 362 Mich 262, 263. However, a violation of the assured-clear-distance statute constitutes negli[640]*640gence per se. McKinney v Anderson [373 Mich 414, 419 (1964)].
"However, as we have previously indicated the assured-clear-distance statute must be 'reasonably construed.’ Sun Oil Co v Seamon (1957), 349 Mich 387, 411. As such, it is not applicable under all circumstances where it might otherwise be literally employed.

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Hughes v. Polk
199 N.W.2d 224 (Michigan Court of Appeals, 1972)

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Bluebook (online)
199 N.W.2d 224, 40 Mich. App. 634, 1972 Mich. App. LEXIS 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-polk-michctapp-1972.