Opinion
Docket No. 139039.
Decided May 7, 1991, at 10:45 A.M. Leave to appeal sought.
James R. Porritt, Jr., for the plaintiffs.
Beier Howlett, P.C. (by Gerald G. White and Robert G. Waddell), for the defendant.
Before: HOOD, P.J., and WAHLS and MURPHY, JJ.
ON REMAND
Defendant appealed as of right from a substantial jury verdict for plaintiffs, which was reduced by a settlement setoff and the jury's finding that plaintiff Deborah Petrove was sixty-six percent at fault. In its February 7, 1989, opinion, this Court affirmed the jury verdict, concluding in part that the trial court did not commit error requiring reversal by instructing the jury with regard to the last clear chance doctrine, SJI2d 14.01. Petrove v Grand Trunk Western R Co, 174 Mich. App. 705, 710-711; 436 N.W.2d 733 (1989). Specifically, the Court held:
In the present case, there was evidence that at least one of defendant's employees had notice that plaintiff driver was helpless or inattentive prior to the accident. Furthermore, there was also some evidence that the operators of the train could have avoided the collision. Thus, it was within the trial court's discretion to instruct on the last clear chance doctrine. Moreover, even if the last clear chance instruction was inappropriate, we find that the instruction did not result in substantial injustice to defendant. Willoughby [ v Lehrbass, 150 Mich. App. 319, 336; 388 N.W.2d 688 (1986).] [ 174 Mich. App. 711.]
In Petrove v Grand Trunk Western R Co, 437 Mich. 31; 464 N.W.2d 711 (1991), the Supreme Court determined that the trial court erred in instructing the jury with regard to the last clear chance doctrine. The Court indicated, however, that it could not determine whether the error was harmless. Consequently, the Court vacated the judgment of this Court and remanded the case to us for further consideration and explanation of whether the error requires a new trial. For the reasons expressed in Callesen v Grand Trunk Western R Co, 175 Mich. App. 252; 437 N.W.2d 372 (1989), we again conclude that the erroneous instruction did not result in substantial injustice to defendant, and therefore affirm.
In Callesen, this Court determined that it was error to instruct the jury with regard to the last clear chance doctrine in light of this state's adoption of comparative negligence principles. 175 Mich. App. 259-263. However, the Court explained that this instructional error was nevertheless harmless since the notions of last clear chance are proper factors for the jury to consider in apportioning damages according to the degree of each party's fault. The jury's special verdict clearly evidenced compliance with comparative negligence principles, and thus the Court concluded that substantial injustice did not result from the instructional error. Id.
For these reasons, we conclude that the instruction given in the instant case on the last clear chance doctrine was error. The error, however, does not require reversal because it did not result in a jury verdict inconsistent with substantial justice. MCR 2.613(A); Johnson [ v Corbet, 423 Mich. 304, 327; 377 N.W.2d 713 (1985)]. The instruction given would not have allowed a full recovery despite plaintiff Russell Callesen's own negligence. The instruction only provided that the plaintiff may still recover if the components of the last clear chance doctrine were found. Both the instructions as a whole and the special verdict form required the jury to determine if plaintiff was negligent and the percentage of fault attributable to the plaintiff in accordance with Michigan's comparative negligence system. Since the jury did proceed in this manner and found plaintiff to be fifty-five percent negligent, we can find no injustice and, therefore, affirm the jury verdict. This result demonstrates just how superfluous the doctrine of last clear chance is. In effect, the doctrine of last clear chance was ignored and the case was decided on a comparative negligence basis. [ 175 Mich. App. 263.]
In this case, as in Callesen, the instructions as a whole, as well as the special verdict, reveal that the jury complied with the principles of comparative negligence. The jury not only found defendant negligent, but determined that plaintiff Deborah Petrove was sixty-six percent at fault for her injuries.
Accordingly, we find that no substantial injustice resulted. We therefore affirm the jury's verdict in favor of plaintiffs.
Affirmed.