Opinion
Calendar No. 5, Docket No. 52,149.
Decided September 3, 1969.
Appeal from Court of Appeals, Division 2, T.G. Kavanagh, P.J., and McGregor and J.H. Gillis, JJ., affirming Oakland, Dondero (Stanton G.), J. Submitted June 4, 1969. (Calendar No. 5, Docket No. 52,149.) Decided September 3, 1969.
10 Mich. App. 112, affirmed by an equally divided court.
Complaint by James H. Young, administrator of the estate of Paul Robert Young, deceased, against Robert W. Groenendal and Harry H. Fetterly for wrongful death. Judgment on directed verdict for defendants. Plaintiff appealed to Court of Appeals. Affirmed. Plaintiff appeals. Affirmed, by an equally divided court.
Wallace D. McLay, for plaintiff.
Plunkett, Cooney, Rutt Peacock ( David J. Watters, Jr., of counsel), for defendants.
On October 12, 1962, plaintiff's decedent, a 13-year-old boy, was riding a bicycle in a westerly direction on the sidewalk on the south side of a paved highway. The highway right-of-way extended to the south edge of that walk. Between the walk and the south edge of the pavement was a grassy area on which defendants, owners of an adjacent gasoline station, had placed 3 large sandwich-type signs, over 6 feet high, which extended south, perpendicular to the highway, for about 14 feet, from a point beginning about 5 feet south of the pavement. East of the signs a driveway ran from the gasoline station north to the paved highway. When the bicyclist reached that driveway he turned north and rode, without stopping, onto the pavement of the highway. A motorist, traveling east on that highway, collided with the bicycle and its rider was killed. For that the boy's father brought this action under the wrongful death act (CLS 1961, § 600.2922 [Stat Ann 1962 Rev § 27A.2922]).
Plaintiff's original complaint charged defendant gasoline station owners with negligence which was a proximate cause of the accident in maintaining the signs on the highway right-of-way in violation of statute. Defendants filed an answer including in their defense that of the bicyclist's contributory negligence in having violated the statute requiring him to stop the bicycle on the driveway before entering the paved portion of the highway. Plaintiff then amended his complaint to change the charge against defendants from negligence to public nuisance.
At the conclusion of plaintiff's proofs, on trial, the circuit judge directed a verdict in favor of said defendants of no cause for action on the ground of the bicyclist's contributory negligence as a matter of law. Plaintiff's appeal therefrom to the Court of Appeals resulted in affirmance there on that same ground. Plaintiff is now here on leave granted to appeal. 381 Mich. 784.
Plaintiff's chief contention is that contributory negligence is no defense to an action for damages resulting from defendants' maintaining a public nuisance, and that defendants' placing and keeping the signs on the highway right-of-way was in violation of statute (CLS 1961, §§ 247.275, 247.276 [Stat Ann 1969 Cum Supp §§ 9.1405, 9.1406]) and, hence, a public nuisance which was a proximate cause of the accident because the signs obstructed the vision and prevented the motorist and the bicyclist from seeing each other soon enough to avoid the accident.
A problem of labels is involved. Can denominating defendants' action or inaction a nuisance, rather than negligence, change the law as to availability of the defense of contributory negligence, or will the court peer through the label to the nature of the causes of the damage to determine the question? We think the latter is and should be the prevailing rule. An interesting pertinent discussion of the subject is to be found at 73 ALR2d 1378, and particularly at page 1380, where the following appears:
"The rule that contributory negligence is not a defense to a charge of nuisance apparently developed primarily in connection with actions involving charges of the maintenance of a condition interfering with the proper use of the plaintiff's realty. In such cases, the early courts, always tender of rights in land, rejected the argument that a man's use of his property should be conditioned or limited by the necessity of avoiding harm from his neighbor's wrongful acts, and it is apparently still the rule in most jurisdictions that contributory negligence is not a defense in an action for damages arising from such a nuisance.
"With the extension of the nuisance label to a wide variety of other types of harm, astute plaintiffs soon advanced the argument that if the cause of action could be brought under the nuisance umbrella, the rule that contributory negligence is not a defense must also be applied, even though the action might be for personal injury or chattel damage having only the most remote, if any, connection with the use of realty, and might involve circumstances more usually presented in an ordinary negligence action.
"To meet this argument and to avoid permitting or denying recovery to the negligent plaintiff only on the basis of the label attached to the cause of action, many courts began to draw a distinction between what may be called `negligent' nuisance, where recovery would be authorized only if it could be shown that defendant had acted negligently, and `absolute' nuisances, holding that contributory negligence was a defense in the former but not in the latter cases.
"However, attempts to clearly define this distinction have not been too successful and in several cases the courts have apparently taken the view that it should be abandoned, holding that in all nuisance cases, at least where interference with the use of realty is not involved, the plaintiff is under a duty of exercising reasonable care, although of course the question as to what constitutes reasonable care under the circumstances will vary according to the nature of the defendant's wrongful act and the type of condition created thereby."
This is not an action for damage to plaintiff's land caused by the condition or use of defendants' land or of the right-of-way which the cases have termed "absolute" nuisance. It seems to us that this falls, rather, into the class described in Denny v. Garavaglia (1952), 333 Mich. 317, as a nuisance that has its origin in negligence. In that case this Court said, inter alia:
"It is the general rule that contributory negligence is a defense to a nuisance that has its origin in negligence. See McFarlane v. City of Niagara Falls (1928), 247 N.Y. 340 ( 160 NE 391, 57 ALR 1). In the above case, it was said (pp 344, 348):
"`Not a little confusion runs through the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in their application to nuisances of one class have been thoughtlessly transferred to nuisances of another. There has been forgetfulness at times that forms of action have been abolished and that liability is dependent upon the facts and not upon the name Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance.'"
In the instant case defendants were not wilfully inflicting a wrong. While unlawful placing of the signs constituted negligence because in violation of statute, it was not necessarily calculated to cause injury or damages to others nor does the record indicate that this was reasonably foreseeable. Pictures in evidence would appear to the contrary.
CLS 1961, § 257.657 (Stat Ann 1968 Rev § 9.2357), places the same duties and requirements on persons riding bicycles as on motor vehicle operators and CLS 1961, § 257.652 (Stat Ann 1968 Rev § 9.2352), requires that drivers about to enter or cross a highway from a private driveway shall come to a full stop before entering the highway and yield to traffic approaching on the highway. As established by the uncontradicted testimony, the bicyclist did not comply with this statutory requirement. He was, accordingly, guilty of contributory negligence as a matter of law. Rasmussen v. McEachron (1936), 274 Mich. 200. See, also, Zabawa v. Eshenroeder (1946), 313 Mich. 555, in which plaintiff bicyclist was denied recovery for damages resulting from being struck by a motor vehicle because of his own contributory negligence.
The trial court was correct in directing verdicts in favor of defendants, the gasoline station owners.
Affirmed. Costs to defendants.
T.E. BRENNAN, C.J., and KELLY, J., concurred with DETHMERS, J.
My vote is cast for reversal and entry of order for new trial.
I have written before that the practice of directing a verdict for the defendant on exclusive strength of the credible or incredible testimony of an interested witness, the assigned reason being contributory negligence, should be arrested summarily. See Wolfgram v. Valko (1965), 375 Mich. 421, 432. There a directed verdict for the defendant was upheld by equal division of the Court. The same question is here again.
In Wolfgram (p 438) I called attention to the pertinent rule of Sonnentheil v. Christian Moerlein Brewing Company (1899), 172 U.S. 401 ( 19 S Ct 233, 43 L Ed 492), and to the Supreme Court's continued pursuit of that rule in instances where summary toss-out of damage actions has been sought. The rule ( Sonnentheil at 408, 409):
"Notwithstanding the testimony of these witnesses was so positive to the effect that they accepted the trust, we are of opinion that it was not improper to submit the question to the jury. In its charge the court instructed the jury that the creditors who accepted the deed of trust must themselves be free from the taint of fraud, and the question of fraud was so connected with that of acceptance that it was possible for the jury to have found that the accepting creditors had knowledge of the fraud at the time of their acceptance. They were all apparently interested in sustaining the deed, and in denying all knowledge of a fraudulent intent, and while the jury has no right to arbitrarily disregard the positive testimony of unimpeached and uncontradicted witnesses, Lomer v. Meeker (1862), 25 N.Y. 361, 363; Elwood v. Western Union Telegraph Company (1871), 45 N.Y. 549, 553 (6 Am Rep 140), the very courts that lay down this rule qualify it by saying the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact. [Citing cases.]"
A month after Wolfgram was decided Justice SOURIS employed Sonnentheil in similar vein. See Durant v. Stahlin (Appeal re Van Dusen, Elliott, Romney) (1965), 375 Mich. 628, 640, 651. I would apply it to this appeal since all of us, along with Judges J.H. GILLIS and McGREGOR of the appellate panel ( Young v. Groenendal, 10 Mich. App. 112, 118), are agreed that "the only person able to supply any direct and positive testimony concerning Paul Young's conduct just prior to the collision was Barnes."
Mr. Barnes was the driver of the death car. Since a verdict in favor of the defendants would relieve him from possible liability over, for contribution, he was legally interested in the result of the trial. His status as an interested witness was, therefore, more pronounced than that shown in the Sonnentheil Case, the witnesses there having been declared only "apparently" interested. Here Mr. Barnes' concern was real, made so by his own testimony.
The evidentiary facts adduced here closely parallel those which the Court reviewed in Petersen v. Lundin (1926), 236 Mich. 590, where the decedent was not seen by the defendant motorist "before he was in front of the automobile," and also in Green v. Wallace (1965), 376 Mich. 113, where the defendant motorist did not see the plaintiff pedestrian until he was approximately 3 feet from the car. To that I add here, as quite in point on the subject of burden of proof, the following passage appearing in Green v. Wallace at 124:
"Aside from the above it is important to note again that the burden of persuasion respecting contributory negligence rests now on the party asserting it ( City of Dearborn v. Bacila, 353 Mich. 99, 117; former Court Rule 23, § 3a, effective June 1, 1958; GCR 1963, 111.7); also that ( Speiser v. Randall, 357 U.S. 513, 525 [ 78 S Ct 1332, 2 L Ed 2d 1460]):
"`In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Company v. Dunlap (1939), 308 U.S. 208 ( 60 S Ct 201, 84 L Ed 196); United States v. New York, New Haven Hartford R. Company (1957), 355 U.S. 253 ( 78 S Ct 212, 2 L Ed 2d 247); Sampson v. Channell (CA 1, 1940), 110 F.2d 754, 758 (128 ALR 394).'"
Rasmussen v. McEachron (1936), 274 Mich. 200, upon which Division 2 relied in holding that Mr. Barnes' credibility was not in issue for the purposes of defendants' motion, is neither opposed nor in point. There a presumably disinterested eyewitness (the defendant's sister), having an amply precedent view of all causal events, provided testimony sufficient to overcome the presumption of due care. It should be noted, however, that the Rasmussen Case was decided years before this Court lifted, from plaintiffs in negligence, the burden of disproof of contributory negligence.
I conclude that Division 2 erred in upholding this judgment, entered as it was upon an instructed verdict. But there is still another reason for so concluding, one not considered in the opinion proposed for affirmance. It is that Mr Barnes' testimony concerning contributory negligence was simply too indefinite and uncertain for matter-of-law ouster from the case of the presumption of due care. One need but refer in support to the rules set forth in Gillett v. Michigan United Traction Co. (1919), 205 Mich. 410 and to this passage, taken in Hill v. Harbor Steel Supply Corporation (1965), 374 Mich. 194, 208, 209 from Mack v. Precast Industries, Inc. (1963), 369 Mich. 439, 454:
"I agree with Justice DETHMERS that no reversible error resulted from denial of plaintiff's request to charge that her decedent was presumptively free from contributory negligence. The request was not phrased in accordance with what apprehendedly is the instructionally correct rule for cases like this, set forth in durable Gillett v. Michigan United Traction Co. (1919), 205 Mich. 410, 421. Aside from that, I must register disagreement with the conclusion that former Court Rule No 23, § 3a (1945), now GCR 1963, 111.7, has eliminated need for instruction, when such instruction is otherwise appropriate, upon the subject of presumed due care. Conceivably, many cases will come to this Court where, even though the defendant now bears the burden of proving contributory negligence, the plaintiff on properly couched request in a jury case, or on judicial consideration of a nonjury case, will be entitled to aid of the presumption. Surely that will be true when, as here, the defendant's proof of such negligence presents a doubtful, or uncertainly circumstantial question of fact for the jury, and certainly it will be true when the defendant presents no proof of contributory negligence."
Now, to settle this disputatious question whether the defendants have established as a matter of law their pleaded affirmative defense of contributory negligence, let us read together all of Mr. Barnes' testimony which, connectedly, bears on that question. Mr. Barnes was a retired Ford Motor employee, 74 years old. He testified:
Direct examination, by Mr. McLay:
"Q. You were approaching a Sunoco gas station. Did you see anything unusual?
"A. Yes.
"Q. What did you see?
"A. Well, I seen a boy coming out of the gas station on a bicycle.
"Q. Where was this boy when you first saw him?
"A. Well, he was coming about — I would imagine — about 6 or 7 feet, maybe not that, I don't know, from —
"Q. I can't understand you.
"He was 6 or 7 feet from where?
"A. When I seen him, when I first seen him he was probably, oh, I don't know, 5-6 feet from the curb, you know.
"Q. When you say, `the curb', you mean the edge of the concrete?
"A. Yes, the concrete road. "Q. This is when you first saw him is that correct?
"A. Yes.
"Q. Now, was he — what was he on? Was he on the sidewalk or what when you saw him?
"A. He wasn't on the road. He was on — coming down in the gas station.
"Q. The gas station driveway?
"A. Yes.
"Q. Did you see him when he was back farther?
"A. There were signs.
"Mr. Watters: Your Honor, I would object to this. I think it would call for a conclusion.
"The Court: That would be conclusionary.
"All right.
"Q. ( By Mr. McLay) You say you first saw him 5 or 6 feet from the edge of the road, is that correct?
"A. Yes.
"Q. Was there anything else that you observed in the immediate vicinity at that time?
"A. Well —
"Q. Would you speak up, Mr. Barnes? The jury can't hear you and I am having difficulty, too.
"A. Well, what was the question?
"Q. Did you see any signs at the scene of this accident prior to the accident?
"A. Well, I don't understand just what you mean.
"Q. Were there any signs there?
"A. Oh, yes.
"Q. Where were those signs?
"A. Well, the signs were running along the middle of it, all along (indicating).
"Q. Along — can you tell us where they were in reference to where you first saw Paul Young?
"A. Well, he was just about coming just down near the edge of the signs when I seen him. And I come in there, and the signs and him — the edge of the sign and him was about together. I don't know just what — "Q. Where were the signs in reference to the driveway Paul Young was on when you saw him?
"A. Well, the sign, like if — (indicating).
"Q. Does this picture honestly depict the signs you have been telling us about? I am referring to exhibit L.
"A. Yes.
"Q. Now, would Paul Young have been on this sidewalk or — strike that — on the driveway which is behind those signs?
"A. Yes, he was behind those signs when I seen him.
"Q. In other words, when you saw him, he was coming out from the sign closest to the road; is that correct?
"A. Yes.
"Q. What did you do at that time?
"A. Well, when I seen him, I thought I could turn. I turned out of the road to the next lane.
"Q. Did you stop?
"A. Well, I kind of stopped there and then I looked over and I — I don't know just what I did do. But I drove along then I started to drive out of it, back into the other one, and then I came to I shouldn't do that; and I — so, I just stopped.
"Q. Do you recall having seen these signs prior to the incident of this accident?
"A. Oh, yes, I had seen the signs.
"Q. How long had they been there, if you can recall, prior to this accident?
"A. How long? Oh, probably 2 or 3 years, anyway; maybe not; I don't know just —
"Mr. McLay: I have no other questions.
"Cross-Examination by Mr. Watters: "Q. Now, as I understand it, Mr. Barnes, you saw the boy, he was on his bicycle to your right; is that right?
"A. Yes. "Q. All right. After you first saw him, did he come right in front of you on the bicycle?
"A. He came right out, out — he was coming — all I — I don't know, I just turned and as soon as I seen him, tried to get away.
"Q. All right.
"Was he pumping pretty fast on the bike when you saw him come out of there?
"A. Well, I couldn't tell whether that — he sure was pumping it, probably, no question of that. I couldn't —
"Q. `No question of that.' All right.
"Did he come out straight?
"A. Yes.
"Q. Right out into the road?
"A. Right into the road, right straight out.
"Q. And was he pumping from the time you first saw him until the time that you hit?
"A. Well, I couldn't say.
"Q. Was he moving all this time?
"A. Yes, he was moving; moving fast.
"Q. Do you know where which part of your car came into contact with the bike?
"A. I think it was around the front of the wheel.
"Q. Which one, right or left?
"A. The right.
"Q. Right wheel. Okay.
"A. Around in that vicinity there, I don't know just where.
"Q. Now, before the time that you — that the impact occurred — I lost that one.
"The accident happened in this right lane of the pavement, did it (indicating)?
"A. Yes.
"Q. Before the time of the impact, did you — were you able to turn your car to the left and move over toward the left?
"A. Well, that I couldn't say. It's done so quick and I don't know. "Q. Okay."
Having arrayed Mr. Barnes' testimony beside the opinion proposed for affirmance, I am quite unable to identify the "undisputed testimony" which is said to establish conclusively that the decedent did not stop obedient to the statute (CLS 1961, § 257.652) before pedaling out from the sidewalk, where he had been riding, toward the paved portion of the road. The boy indeed may not have stopped, as alleged. But Mr. Barnes did not see him until he and his bike had cleared the defendants' signs and the record is barren of proof that the boy was negligent as charged prior to his coming into the view of Mr. Barnes.
I concede of course that Mr. Barnes' testimony provides a permissible inference — no, a persuasively strong inference — that the boy violated the statute. But that inference was for exclusive acceptance or rejection by the jury, not for matter-of-law application by the trial judge or any appellate judge.
Mr. Barnes' testimony provides still another permissible inference. It is that the proximate cause of the boy's failure to see the approaching car in time to avoid the impending collision, and of the motorist's precedent failure to see the boy riding out on his bicycle, was due to the fact that the defendants had illegally installed and were illegally maintaining, between the curb and the sidewalk, the three side-by-side advertising signs that are depicted by photographic exhibit E, an exhibit State Police Officer Weeks produced and identified.
My considered view is that the presumption of due care was not in this case overcome as a matter of law and, there being ample evidence of causal negligence on the part of the defendants, that it — the presumption — called for submission to the jury of the issue of contributory negligence with instructions guided by the Gillett Case, supra.
T.M. KAVANAGH and ADAMS, JJ., concurred with BLACK, J.
T.G. KAVANAGH, J., did not sit.