Docket No. 21, Calendar No. 45,011.
Decided September 5, 1951. Rehearing denied December 3, 1951.
Appeal from Wayne; O'Hara (Chester P.), J. Submitted June 5, 1951. (Docket No. 21, Calendar No. 45,011.) Decided September 5, 1951. Rehearing denied December 3, 1951.
Case by Leah V. St. John, administratrix of the estate of Leonard O. St. John, deceased, against Reed J. Nichols and wife to recover damages resulting from his death when struck by defendants' automobile. Verdict for plaintiff. Judgment for defendants non obstante veredicto. Plaintiff appeals. Reversed and new trial granted.
Addison D. Connor, for plaintiff.
Clark C. Coulter ( Victor H. Hampton, of counsel), for defendants.
This action was brought for the wrongful death of plaintiff's decedent. A jury returned a verdict for plaintiff. The trial court entered a judgment for defendants non obstante veredicto. Plaintiff appeals. Defendants have not cross-appealed but, in their brief, request a new trial in the event of reversal.
Defendants, husband and wife, were co-owners of an automobile, which the wife was driving and the husband occupying as a passenger. She stopped the car, as directed by a stop sign, for a through street. Decedent, a 16-year-old boy, rode a bicycle through a gasoline station located at the corner immediately to defendants' right and proceeded toward defendants' car. Plaintiff claims that decedent rode the bicycle onto the crosswalk in front of defendants' standing car, whereupon it started forward abruptly, striking the bicycle broadside. The record is devoid of testimony for plaintiff concerning decedent's course of conduct and manner of riding the bicycle prior to the collision, leaving nothing from which it may be inferred that he saw defendants' car, maintained a proper lookout or conducted himself as an ordinary, careful and prudent person would have done under like circumstances. Testimony for the defense was that the car had started forward and almost reached the center of the intersecting street when decedent's bicycle suddenly cut in front of defendants' right fender after having passed the car along its right side. Defendant driver admitted that she first saw the boy on the bicycle at the instant of the collision. When struck the boy was thrown onto the hood of the car. Defendant driver testified that she thereupon became very distraught, excited and upset and that she could not remember clearly what she did or what happened after the impact. Defendants entered the intersection with the intention of making — and they did make — a left turn. After the collision the car continued forward, increasing its speed gradually to about 10 or 15 miles per hour, with the boy bouncing up and down on the hood, for a distance claimed by plaintiff to be from 135 to 150 feet. In completing the left turn the car went up over the far curb and then back onto the pavement, during which time the boy fell, was dragged under the car for about 30 feet and then run over by a rear wheel. Within a couple of hours he died of resulting injuries. Plaintiff claims that decedent would not have been seriously injured had the car stopped promptly after the collision.
There was evidence sufficient to go to the jury on the question of whether defendant driver was guilty of negligence which was one of the proximate causes of the accident by reason of her admitted failure to observe decedent's approach. On the other hand, the learned trial judge was correct in holding that plaintiff had failed to sustain the burden of proving decedent's freedom from contributory negligence constituting a proximate cause of the collision. It was upon that ground that judgment non obstante veredicto for defendants was entered. That judgment should not be permitted to stand, however, because of the existence in this case of the question of defendants' subsequent negligence.
Plaintiff's declaration contained 2 counts. The first declared on defendants' negligence and decedent's freedom from contributory negligence. Count 2 incorporated all of count 1, including allegations that defendants were guilty of gross negligence and wanton and reckless misconduct in failing to look out for decedent and in failing to stop the car within a reasonable distance after striking him and discovering him in a position of peril on the hood of the car. Count 2 also alleged that it had become defendants' duty to discover decedent in that position of peril and so to avoid injuring him, and that they had had the last clear chance to avoid such injury to him. The trial court declined, however, to submit the case to the jury on the last clear chance theory on the ground that, as a prerequisite thereto, plaintiff must allege and prove decedent's contributory negligence, or negligence on his part which placed him in the position of peril, citing Gibbard v. Cursan, 225 Mich. 311; Davidson v. City of Detroit, 307 Mich. 420; Morrison v. Hall, 314 Mich. 522; and Dulemba v. Tribble, 325 Mich. 143.
Plaintiff refused to plead or concede decedent's contributory negligence and contended for the right to go to the jury on the alternative theories that decedent was free from contributory negligence but, if found guilty thereof, that he was excused therefrom by defendants' subsequent negligence. In that contention plaintiff was correct. The trial court's view is not supported by the cases just above cited. In the Gibbard Case this Court held that the question of plaintiff's contributory negligence was properly one for the jury, but, at the same time, held the lower court correct in also submitting to the jury the question of defendant's "gross negligence" (not in that case synonymous with "subsequent negligence"). In the Davidson Case this Court considered at length the question of whether the trial court was correct in holding plaintiff guilty of contributory negligence as a matter of law, following which we passed on the question of whether, under the facts of that case, defendant was guilty of subsequent negligence. This was a plain recognition by this Court of plaintiff's right to have considered both the question of his own freedom from contributory negligence and that of defendant's subsequent negligence. In the Morrison Case it happens that plaintiff's negligence was an admitted fact; but the question of whether plaintiff could go to the jury, first on the question of his own freedom from contributory negligence and, if found guilty thereof, then of defendant's subsequent negligence, was not involved nor considered. Likewise, in the Dulemba Case we considered first whether the question of plaintiff's guilt of contributory negligence was one of law or fact, and thereafter the claim of defendant's subsequent negligence, which we rejected on the single ground that it was not shown that defendant had or should have discovered plaintiff in a position of peril in time sufficient to avoid the injury to him.
While neither the trial court nor defendants cite nor rely upon the case, this Court's opinion in Kerns v. Lewis, 246 Mich. 423, would seem, upon cursory reading, to lend support to the trial court's view. We think, however, as an examination of the record and briefs bears out, that the real meaning of that case is that the doctrine of last clear chance, apparently never urged by plaintiff, was not in the case because not pleaded. Language in the opinion appearing to support the view of the trial court in the instant case we reject as utterly out of harmony with the views of this Court uniformly reflected in its other opinions on the subject, both before and ever since. In addition to the cases above discussed, see, also, in this connection, Kelley v. Keller, 211 Mich. 404 (20 NCCA 228); Golob v. Detroit United Railway, 228 Mich. 201; Howell v. Hakes, 251 Mich. 372; and Mallory v. Pitcairn, 307 Mich. 40.
The confusion in this case appears to have resulted from a misconstruction of the expressions of this Court on the subject, of which the following from Davidson v. City of Detroit, supra, is typical:
"In order to apply the doctrine of subsequent negligence * * * plaintiff's negligence must have put her in a position of danger, must have ceased to operate as the proximate cause of the accident, the defendant must have discovered plaintiff's peril or should by the exercise of ordinary care and diligence have discovered plaintiff's peril, the defendant must have had sufficient time and ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand, and failed or omitted to use such care and diligence to avert the threatened injury."
The quoted language does not lay down the rule that a plaintiff must plead or concede his own negligence in order to be entitled to go to the jury on the last clear chance doctrine. Rather, it means that even though the court or jury should find that plaintiff was placed in a position of peril through his own negligence, the latter will not bar recovery by plaintiff if it had ceased to operate as a proximate cause of the injury caused by defendants' subsequent negligence. The law has been well stated in Gibbard v. Cursan, supra, as follows:
"In the ordinary case of negligence, if the plaintiff has been guilty of negligence, contributing to the injury for which the action is brought, he cannot recover. It is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked. * * *
"The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts (2d ed), p 674; Labarge v. Pere Marquette Railroad Co., 134 Mich. 139.
"If the plaintiff is in a position which has become dangerous and he is free from negligence, and the defendant knows, or ought by the exercise of ordinary care to know, of plaintiff's peril, and nevertheless negligently injures him, there is no occasion to invoke the doctrine of gross negligence to excuse negligence of plaintiff, for there is no negligence of plaintiff to be excused. Schnurr v. Detroit United Railway, 222 Mich. 591."
Whether decedent's injuries were due solely to defendants' negligence, without contributory negligence on his part, or, on the other hand, were due to defendants' subsequent negligence after decedent's negligence had placed him in a position of peril and then ceased to operate as a proximate cause of the ensuing injuries, in either event plaintiff would be entitled to recover. If defendants discovered or, in the exercise of due care, should have discovered decedent in a position of peril, in sufficient time to be able, by the exercise of due care and diligence in the use of the means at hand, to avoid injury to decedent but failed to exercise such care and use such means, with the result that decedent was injured by reason of such neglect by defendants, the latter are liable to plaintiff in damages regardless of whether decedent came into such position of peril without fault or negligence on his part or through his own negligence which had ceased to operate as a proximate cause of the ensuing injury. Gibbard v. Cursan, supra. That right of plaintiff to recover under either of those 2 sets of circumstances the court may not defeat by requiring her, at her peril, to gamble on whether the jury might prefer the theory of decedent's freedom from contributory negligence or that of defendants' subsequent negligence. When subsequent negligence is properly pleaded by plaintiff the occasion for the application of that doctrine by court or jury arises when the court or jury has found antecedent negligence on plaintiff's part, regardless of whether such negligence was pleaded or conceded by plaintiff or not. Here the court found plaintiff's decedent guilty of contributory negligence as a matter of law. Inasmuch, therefore, as plaintiff was entitled to have the case considered by the jury under the last clear chance doctrine, a right denied her by the trial court, the judgment non obstante veredicto in favor of defendants ought to be set aside.
It remains to be determined whether the case should be remanded for entry of judgment for plaintiff on the jury verdict or for a new trial. Under the court's instructions, which in nowise touched on the law pertaining to subsequent negligence, the jury's verdict could have been predicated only upon a finding of decedent's freedom from contributory negligence. They so answered a special question. As previously stated, the verdict cannot be sustained on that theory for lack of proofs. The verdict is not saved by the fact that answers to special questions, submitted at defendants' request, indicate that the jury might have found for plaintiff on the subsequent negligence theory had the case thus been submitted to it. Without deciding what the rule might be if the undisputed and established facts warranted holding defendants guilty of subsequent negligence as a matter of law (In this connection see: Emerson v. County of Santa Clara, 40 Cal. 543; O'Neill v. Thomas Day Co., 152 Cal. 357 [ 92 P. 856, 14 Ann Cas 970]; Armstrong's Admr. v. Keith, 26 Ky. 107 [3 Marsh 153, 20 Am Dec 131] and annotations under latter.), suffice it to say that in the instant case defendants' subsequent negligence, if any, presented a question of fact for the jury. Under such circumstances a verdict erroneously returned in plaintiff's favor on the theory of decedent's freedom from contributory negligence cannot be upheld merely because it might have been returned under the last clear chance doctrine, when the jury actually was permitted and required to arrive at its verdict without the benefit of any instructions whatsoever touching the law governing the application of that doctrine. Before judgment may enter against defendants on that theory, they are entitled to the decision of a jury under proper instructions as to the law applicable thereto. Jorgensen v. Howland, 325 Mich. 440.
Relying on Court Rule No 66, § 8 (1945), plaintiff urges that defendants are not entitled to a new trial nor to have errors against them considered other than as waived because defendants have not cross-appealed nor attached to the record a statement of reasons and grounds therefor. Compliance with this rule serves the desirable purpose of placing both parties in the same position as relates to the necessity for apprising each other and this Court of their claims of error and limiting the scope of their appeals thereto. An appellee ignores the requirements of the rule at his peril. In re Knox's Estate, 220 Mich. 469; Yacobian v. Vartanian, 221 Mich. 25; Levin v. Fisher, 217 Mich. 681; Peters v. Aetna Life Ins. Co., 282 Mich. 426. This Court possesses inherent power, however, to order a new trial whenever it deems that the ends of justice so require. The rule cannot operate to compel this Court to invade the province of the jury or to function as a trial court in determining whether, as a matter of fact, defendants were guilty of subsequent negligence entitling plaintiff to recovery. It was no doubt with the thought of avoiding such and other highly undesirable consequences of a strict enforcement of Rule No 66, § 8, that this Court in 1945 promulgated Court Rule No 72, § 1 (h), which provides, under the heading of "Miscellaneous Relief Obtainable in Supreme Court:"
"In the event that a judgment non obstante veredicto is set aside on appeal, the Supreme Court may grant a new trial, provided, however, that such relief has been asked for and reasons therefor set forth in the brief."
To hold otherwise and to give Rule No 66, § 8, a strict construction would serve to render Rule No 72, § 1 (h) meaningless. While this Court should and does give due regard to its own rules, the promulgation thereof cannot shackle the powers of this Court to do that which ought to be done if otherwise within the powers of the court. We note, in passing, that the granting of a new trial here is not inconsistent with CL 1948, § 691.692 (Stat Ann § 27.1462). We do not base decision thereon inasmuch as the subject comes within the exclusive powers of this Court and is, therefore, outside the legislative province. (Const 1908, art 4, §§ 1, 2; art 7, §§ 1, 5.)
Judgment non obstante veredicto reversed and cause remanded for new trial. No costs on this appeal, neither party having prevailed in full. Costs in the court below to abide the final result.
REID, C.J., and BOYLES, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.