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Wohlgelernter v. Moffatt

Michigan Court of Appeals
Feb 28, 1969
167 N.W.2d 866 (Mich. Ct. App. 1969)

Opinion

Docket No. 4,891.

Decided February 28, 1969. Rehearing denied April 4, 1969. Leave to appeal denied December 16, 1969. See 383 Mich. 752.

Appeal from Oakland, Arthur E. Moore, J. Submitted Division 2 February 10, 1969, at Detroit. (Docket No. 4,891.) Decided February 28, 1969. Rehearing denied April 4, 1969. Leave to appeal denied December 16, 1969. See 383 Mich. 752.

Complaint by Solomon Wohlgelernter against Frederick Moffatt and Sydney Ennis for damages resulting from plaintiff being struck by defendants' automobile. Verdict and judgment for defendants. Plaintiff appeals. Affirmed.

Sugar, Schwartz, Silver, Schwartz Tyler, for plaintiff.

Eggenberger Eggenberger, for defendants.

BEFORE: FITZGERALD, P.J., and R.B. BURNS and BRONSON, JJ.


This is a case involving plaintiff, a pedestrian, in an automobile accident at an intersection. Plaintiff-appellant contends that an ordinance of the city of Detroit defines the standard of care and that the ordinance creates a situation where reasonable minds would not differ. Ergo, he states, a favorable decision should have been entered by the court, notwithstanding the verdict of the jury.

The second alleged ground for error is based upon the trial judge's failure, or refusal, to give a requested instruction to the jury.

On the first issue, plaintiff's construction of the ordinance is not tenable. The ordinance deals with pedestrians legally in a crosswalk having the right of way, and he alleges that once in the crosswalk they have little duty to exercise any care or caution. This conclusion is not correct. Negligence and contributory negligence of a pedestrian are questions of fact for the jury. Whether plaintiff exercised reasonable care is a fact question. See Ortega v. Lenderink (1968), 10 Mich. App. 190. In the instant case, the verdict of no cause of action is sustained; there was no legal issue which would allow court intervention.

The second question revolves around whether the court erred in failing to give plaintiff's requested instruction that an unmarked crosswalk, as defined in the Detroit ordinance, existed at the intersection in question. The ordinance was twice read to the jury but plaintiff asserts it should have been explained and interpreted.

There is no rule against reading statutes or ordinances in instructing a jury, White v. Vandevelde (1938), 284 Mich. 669. In the present case, the reading of the ordinance adequately informed the jury of its meaning and there was no need to refer to plaintiff's requested instruction. The ordinance is not so unclear in and of itself that it could not be understood by a layman. Additional detail is discretionary as is the use of a proffered instruction.

Affirmed. Costs to appellees.


Summaries of

Wohlgelernter v. Moffatt

Michigan Court of Appeals
Feb 28, 1969
167 N.W.2d 866 (Mich. Ct. App. 1969)
Case details for

Wohlgelernter v. Moffatt

Case Details

Full title:WOHLGELERNTER v. MOFFATT

Court:Michigan Court of Appeals

Date published: Feb 28, 1969

Citations

167 N.W.2d 866 (Mich. Ct. App. 1969)
167 N.W.2d 866

Citing Cases

Fountaine v. Hersey

Whether plaintiff exercised reasonable care is a fact question." Wohlgelernter v Moffatt, 16 Mich App 319,…