Opinion
Docket No. 22067.
Decided December 3, 1975.
Appeal from Wayne, James Montante, J. Submitted October 17, 1975, at Detroit. (Docket No. 22067.) Decided December 3, 1975.
Complaint by Josif Bugar and Marioara Bugar against John L. Staiger and Dennis R. Bronner for damages arising from an automobile accident. Judgment for plaintiffs as to defendant Staiger, and in favor of defendant Bronner. Plaintiffs appeal. Affirmed.
George N. Subu, for plaintiffs.
Ranald Becker, for defendant Dennis R. Bronner.
Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle Lynch (by George F. Clark) for defendant John L. Staiger.
Before: V.J. BRENNAN, P.J., and BASHARA and R.M. MAHER, JJ.
In this automobile collision action, plaintiffs appeal from a jury verdict of $1,600 against defendant Staiger and a verdict of no cause of action against defendant Bronner. Plaintiffs claim five errors were committed by the Wayne County Circuit Court; we find that no reversible errors were made and thereby affirm the jury verdict and the trial judge's denial of plaintiffs' motion for a new trial.
While there is naturally some discrepancy in the facts, testimony indicated that plaintiffs' car was damaged when struck in the rear by defendant Staiger's car while traveling on Edsel Ford Expressway. Defendant Bronner's car, following one car behind Staiger, struck plaintiff Josif Bugar after he had vacated his car following the initial collision. This striking occurred in an exit lane as Bronner was attempting to avoid the crashed vehicles by exiting from the expressway. The factual dispute that dominated the trial concerned the extent of the personal injuries, if any, sustained in the first collision. Plaintiff was either unaffected, slightly dazed, or seriously injured in the initial collision with defendant Staiger. It was uncontested that after all the vehicles had come to rest, plaintiff had severe personal injuries that resulted in extensive medical bills and substantial loss of wages.
Plaintiffs first contend that it was error for the trial judge to instruct the jury on the "sudden emergency" doctrine. Plaintiffs allege that neither defendant was confronted with a sudden emergency. With respect to defendant Staiger, it is quite possible that he did not face an unusual unsuspected situation that would qualify him for an instruction on sudden emergency. Vander Laan v Miedema, 385 Mich. 226; 188 N.W.2d 564 (1971). However, even if the instruction was erroneous, plaintiffs were not prejudiced. The jury still found defendant Staiger negligent, but limited his liability to the estimated $1,600 property damage. The jury's failure to find that defendant Staiger's conduct was the proximate cause of plaintiff's personal injuries is not attributable to a possibly erroneous sudden emergency instruction. See Termaat v Bohn Aluminum Brass Co, 362 Mich. 598, 604; 107 N.W.2d 783 (1961).
With regard to defendant Bronner, the trial judge could have properly determined that the sudden emergency doctrine was applicable under Vander Laan, supra. If there is any evidence to support a finding that an emergency existed within the doctrine, the instruction is proper. Wright v Marzolf, 34 Mich. App. 612; 192 N.W.2d 56 (1971). Testimony that the plaintiff was standing in an expressway exit lane warranted the sudden emergency instruction, for that situation could be deemed by the jury to be unusual or unsuspected.
Concerning the claim against defendant Bronner, plaintiffs contend that the trial judge committed reversible error in failing to instruct the jury on the "passing-on-the-right" statute, MCLA 257.637(b); MSA 9.2337(b). The statute reads:
"The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway."
There was no error in failing to instruct on this statute. No evidence was presented to indicate defendant Bronner was "overtaking and passing". The evidence indicated that Bronner was using the exit lane to leave the expressway. Moreover, as the statute allows passing on the right in certain conditions if done "in safety", an instruction based on the statute would, in this case, merely have been a restatement of a driver's duty of due care. It is not reversible error to refrain from issuing duplicate instructions on the duty to use reasonable care.
Plaintiffs argue that the trial judge should have granted a new trial because the damages were grossly inadequate. We disagree. Concerning defendant Staiger, the jury found him liable for $1,600, the approximate damage to the vehicle. The jury apparently did not believe that defendant Staiger's negligence was the proximate cause of plaintiff's physical injuries. The jury perhaps believed that plaintiff was not dazed by the first collision, but instead was negligent in alighting from his car and entering the exit lane. We will not reverse a jury's verdict unless reasonable minds could not disagree; the jury's verdict is entitled to considerable respect. Ford v American National Insurance Co, 46 Mich. App. 368; 208 N.W.2d 226 (1973). We agree with the trial judge that a verdict of $1,600 in this case was adequate, warranted by the proofs, and not the basis for a new trial against defendant Staiger. Jamison v Lloyd, 51 Mich. App. 570, 577; 215 N.W.2d 763 (1974).
Concerning defendant Bronner, the jury found him to be free from negligence. There is no basis for raising an adequacy of the verdict challenge.
Plaintiffs assert that the trial court committed reversible error in denying plaintiffs rebuttal argument on the issue of the extent of the damages. They claim that the issue was raised by defendant Staiger in his closing argument. Plaintiffs are entitled to make rebuttal argument concerning issues raised in opening argument and contested by the defendant in his reply argument. GCR 1963, 507.6. However, the trial judge is given broad power and discretion concerning the conduct of the argument before the jury. People v Grace, 50 Mich. App. 604, 607; 213 N.W.2d 853 (1973). Our review of the record discloses that the trial judge did not abuse his discretion in concluding that the issue of the extent of the damages had not been discussed by the defendant in his reply argument. His denial of rebuttal on the extent of damage issue was proper.
Plaintiffs' final ground for appeal is that the trial judge should have ordered a new trial on the basis of newly discovered evidence. Plaintiffs had subpoenaed hospital records, but the hospital had neglected to supply the complete records. After the trial, plaintiffs' attorney concluded that the omitted records would have been helpful in proving the moment of plaintiff's injury. However, our impression is that the records would have overlapped testimony given by a witness. The records were, therefore, cumulative evidence. Moreover, we are not convinced that the plaintiffs could not, with reasonable diligence, have discovered and produced the records for trial. For these two reasons, the trial judge properly denied plaintiffs' motion for a new trial on newly discovered evidence grounds. Parlove v Klein, 37 Mich. App. 537; 195 N.W.2d 3 (1972).
Affirmed.