Sakorraphos v. Eastman Kodak Stores, Inc.

116 N.W.2d 227, 367 Mich. 96, 1962 Mich. LEXIS 401

• Court: Michigan Supreme Court
• Decided: July 2, 1962
• Docket: Docket 103, Calendar 48,601
• Status: Published

Opinions

Souris, J.

In the trial of this case, the jury was instructed that there was a city ordinance which required drivers of vehicles turning right on a green traffic signal to yield the right-of-way to pedestrians-lawfully in a crosswalk and that violation of the-ordinance is evidence of negligence, but not negligence per se. The circuit judge did not instruct the-jury that there was a comparable statute (CLS 1956,. § 257.612 [Stat Ann 1960 Rev § 9.2312]), violation of which would be negligence per se. Following denial of his motion for new trial, after jury verdict for defendant, plaintiff appeals, claiming failure of the-court to instruct the jury on the applicable statute constitutes reversible error. Other errors are assigned, but will not be discussed in view of the disposition we must make of this appeal.

Plaintiff testified he was walking north on Woodward avenue in Detroit and stopped on the curb-at Cadillac Square in obedience to a red traffic light. When the traffic light turned green, he said he looked to the left and to the right and, seeing that the way was clear, proceeded into the marked crosswalk. He had taken only 3 or 4 steps into the crosswalk when defendant’s car, making a right turn off Woodward onto Cadillac Square, struck plaintiff, causing him injuries. Based upon these facts, plaintiff claimed below, and claims here, that he had the right-of-way in the crosswalk and defendant’s driver was obliged, by the statute as well as the ordinance, to yield him that right-of-way, failure to do which constituted negligence per se on the part of defendant.

It was defendant’s theory, supported at least by inference from the evidence presented, that plaintiff did not enter the crosswalk until its car had proceeded substantially through it in making its turn and that plaintiff ran into the right side of the car, just in front of the rear fender, because of his own negligent failure to observe what was there to be seen.

Quite clearly there was an issue of fact to be resolved by the jury, but its resolution fairly to both parties required the jury to be instructed upon the statute cited and the legal consequences in the event the jury found it to have been violated. Failure to instruct the jury on this aspect of the case, we conclude, was prejudicial to plaintiff’s rights and requires our reversal and remand for a new trial.

It should be noted that plaintiff’s counsel failed to request an instruction on the statute although he did submit a request for instruction on the applicable ordinance, which was given in substance, and although the statute was relied upon in plaintiff’s declaration. At the hearing on the motion for new trial, Judge Gilmore correctly observed that he should have instructed the jury on the statute even in the absence of request to do so,

* but he concluded the error was not so prejudicial to plaintiff that a new trial was required. We disagree. Plaintiff’s proofs depended in very large part upon application of the statute to support his claim that defendant’s driver was negligent. Absent an instruction on the statute, and on the legal effect of its violation, plaintiff’s case was seriously weakened and á new trial is required to correct the error.

It is the duty of the court to present to the jury the substantial issues in the cause raised by the pleadings and supported by evidence governing the rights of the parties, whether or not any specific instructions are requested by counsel. This duty was not performed by the trial judge in this cause. He did not instruct the jury that if it found defendant had violated the statutory provisions pleaded by the plaintiff, such statutory violations would constitute negligence per se. Barton v. Gray, 57 Mich 622; Martiniano v. Booth, 359 Mich 680, 688. Absent an instruction on the statutes and their legal effect, plaintiff’s cause was seriously weakened. If, after the court instructs the jury on the basic elements of the case, counsel desires additional or more specific instructions upon any particular point, it is his duty to frame a special request to the court to charge as desired. Omitting or neglecting to do so, he will be deemed to be satisfied with the instructions as given, and an exception based upon the want of sufficiency on particular points of law cannot be assigned as error.

The failure to properly charge in the instant case is not the type of error contemplated by Court Rule No 37, § 9 (1945).* See Martiniano v. Booth, supra, and cases therein cited.

. Reversed and remanded for new trial. Costs to plaintiff.

Carr, C. J., and Kavanagh and Otis M. Smith, JJ., concurred with. Souris, J.

See Barton v. Gray, 57 Mich 622, 631, 632; Huffman v. First Baptist Church of Flushing, 355 Mich 437, 445-447; Hicks v. B & B Distributors, Inc., 353 Mich 488, 491, 492; and Martiniano v. Booth, 359 Mich 680, 688.

“The court shall instruct the jury as to the law applicable to the ease whenever a verdict is to be rendered, and in his charge may make such comment on the evidence, the testimony and the character of the witnesses as in his opinion the interests of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is reauested.”