Opinion
Docket No. 80, Calendar No. 44,003.
Decided October 4, 1948.
Appeal from Oakland; Holland (H. Russel), J. Submitted June 15, 1948. (Docket No. 80, Calendar No. 44,003.) Decided October 4, 1948.
Case by Raymond S. Craddock against Torrence Oil Company, a Michigan corporation, and another for personal injuries suffered while trying to avoid collision with defendants' oil truck. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.
Alexander, Cholette, Buchanan, Perkins Conklin, for plaintiff.
Andrews, Langs Wood ( Leroy G. Vandeveer, of counsel), for defendants.
Plaintiff Raymond S. Craddock brought suit against Torrence Oil Company, a Michigan corporation, and its driver, defendants, and recovered a judgment in the sum of $2,600 in accordance with the jury's verdict. Plaintiff suffered personal injuries on November 12, 1945, as a result of a motor vehicle collision on a hill near the intersection of Woodward and Euclid avenues in the city of Birmingham, Michigan. Woodward avenue runs approximately north and south at this point, the paved portion being 70 feet wide. The hill on which the collision occurred extends upgrade from a point approximately 300 feet north from the scene of the accident to a point south of such point. At the time of the accident the visibility was good and the pavement dry, notwithstanding it had rained earlier in the day.
Plaintiff was driving one of the buses of the Great Lakes Greyhound Lines, Inc., his employer, and was going south towards Birmingham, Michigan. There were about 40 passengers on his bus, a few of whom were standing. When thus proceeding and when ascending the hill towards Euclid avenue, he observed defendants' oil truck backing down the hill toward him. He drove to his left and eventually over the center of the pavement onto the left side of the street to avoid a collision with this truck. Defendant Fouracre, driver of the oil truck, was not in it at the time, but had left it standing at the side of the road. In driving to the left side of Woodward avenue in order to avoid hitting the truck, plaintiff's vehicle collided head-on with the northbound bus of his employer. Plaintiff claims the main cause of the accident arose from the negligence of defendant in failing to properly and effectively set the brakes upon the truck when it was left unattended upon a highway.
Defendants' truck had been left unattended with the motor running at the west curb of Woodward avenue, 100 feet south of the intersection with Euclid avenue, defendant Fouracre having gone into the customer's house to make measurements for fuel oil. From the testimony of plaintiff's witnesses, it appears that the truck began to slowly roll backwards down the hill following along the curb for a short distance, then taking an angling course across Woodward avenue, and ended up against a retaining wall on private property at the northeast corner of Woodward and Euclid avenues. The court denied defendants' motion to direct a verdict in their favor. They claim there was no proof of actual negligence on their part and that plaintiff was guilty of contributory negligence.
Circumstantial evidence sometimes may be sufficient to establish negligence. A sufficient prima facie case was made out through the testimony showing the circumstances; the case was taken out of the realm of conjecture and came within the field of legitimate inferences from established facts. Fuller v. Magatti, 231 Mich. 213; Bacon v. Snashall, 238 Mich. 457. In the latter case, it was shown that defendant's automobile had been left unattended upon an incline; that when the brake of the car was properly set, the car would stand on the incline; that the car did start and ran down hill with disasterous results. It was held that there was sufficient evidence to carry the issue to the jury. It was the duty of defendants to effectively set the brakes on the truck before leaving it on the highway. 1 Comp. Laws 1929, § 4720 (Stat. Ann. § 9.1588). In the instant case there was also sufficient evidence to carry the issue of defendants' negligence to the jury.
Defendants contend, also, that, as a matter of law, plaintiff was guilty of contributory negligence which was the proximate cause of the collision. Plaintiff, however, claims that he was confronted with peril and danger in an emergency caused by defendants' negligence and that, as a direct result of such emergency, the collision occurred. It is true that plaintiff may not invoke the emergency rule if his own negligence actually contributed to bring about the emergency and, if such negligence was the proximate cause of the collision, plaintiff may not recover. Meisenheimer v. Pullen, 271 Mich. 509; Perhaska v. Silberg, 302 Mich. 47. However, this became a question of fact in the instant case.
Viewing plaintiff's evidence in the light most favorable to him, we find that there is a showing that plaintiff stopped his bus to receive passengers at a bus stop at the foot of the hill, about 650 feet from the point where defendants' truck was parked at the curb. After making the stop, plaintiff proceeded south up the hill, shifted into second gear and attained a speed of from 20 to 25 miles per hour. He was driving 10 to 12 feet from the west curb. On direct examination he testified that he first observed defendants' truck to be in motion when he was from 50 to 80 feet from it, but on cross-examination he stated this distance was probably 120 to 150 feet. He testified that the truck was in motion backing down the hill on an angle with its front wheels close to the west curb and its rear wheels 6 or 8 feet from the curb. Plaintiff sounded his horn and moved over to the left lane of traffic, checking his side mirror as he did so. He thereupon looked ahead again and noticed that the truck was out in front of him and moving into the middle of Woodward avenue with the fuel oil hose dragging along the ground. He then realized that the truck did not have a driver. He became fearful that the truck would run into the bus and cause a fire, and so he turned his bus further to the east, giving it full throttle, and picked up enough speed to get around the truck, going to the left beyond the center of the highway to do so, and running head-on into the approaching vehicle. His view of the approaching vehicle had been cut off by the truck. The police officer testified that his investigation indicated that defendants' truck rolled backwards quite close to the west curb from a distance of about 50 feet from the place where it was parked, ran upon it for a short distance, and proceeded at an angle across Woodward avenue. Defendants contend that under this evidence it must be held that plaintiff was guilty of contributory negligence for failure to keep a lookout for the backing truck. At most it presents a fair issue for the jury whether or not plaintiff, as a reasonably prudent man, appraised the situation as soon as he should have. Defendants also contend that under plaintiff's evidence he was guilty of contributory negligence in that he failed to stop after he observed the truck backing across the street, and that after plaintiff first saw the truck in motion, he had ample time to come to a complete stop or slow down. On the other hand, plaintiff claims that when he first saw the truck it was in motion and backing up close to the curb. He had a right to assume that a truck in motion upon a highway would have a driver at the controls and would not back across the street in front of traffic. There was no way for him to determine at the time of his first observation that the truck was without a driver. One of the photographic exhibits shows the oil truck, and it is apparent that its large tank cuts off the view of the cab by one approaching from the truck's rear, so that it would have been very difficult for plaintiff to determine that there was no driver in the truck.
Where the unexpected occurs, time must be allowed a driver placed in peril without his fault to appreciate the danger and form a judgment of how he will meet it. Torbert v. Smith's Estate, 250 Mich. 62.
Defendants also claim that plaintiff could have gone around to the right of the truck though plaintiff's witnesses say this was not possible. We have stated the rule in Loucks v. Fox, 261 Mich. 338, 343, as follows:
"In case of an emergency, a driver is not responsible for the selection of the safer method of avoiding a collision. If a reasonably prudent man would turn onto the wrong side of the road under similar circumstances, defendant is free from liability despite the untoward results. The course he adopted was a natural one in the emergency presented."
See, also, Myler v. Bentley, 226 Mich. 384 (23 N.C.C.A. 859); Triestram v. Way, 286 Mich. 13; Smith v. Maticka, 305 Mich. 32.
A question for the jury was presented whether plaintiff acted as a reasonably prudent man would have under the circumstances and even though reasonable minds might differ, or a different jury, in this or another case, might come to a different conclusion, it still remains a jury question.
From the testimony the question arose whether the brakes on defendants' truck were in proper working order at the time of the accident and whether defendants had knowledge of a defective condition in them prior to the accident. A blank form was offered in evidence to explain an invoice showing the truck had been serviced and its brakes looked after on September 21, 1945. The trial court ruled it was inadmissible. The question is not of controlling importance inasmuch as the evidence shows that the brakes did not hold. They were either defective or not properly set.
Objection was made because the court excluded questions propounded by defendants to show that plaintiff was represented by his employer's attorney; that his medical and hospital expenses had been taken care of by the attorney with an agreement for reimbursement, and that suit was undertaken in his behalf while he was still in the hospital for his injuries. Defendants attempted to show that the suit was not undertaken in good faith by plaintiff but was really an action by his employer. We believe that the questions were properly excluded as they constituted an attempt to prejudice the jury against the plaintiff. There was no claim that plaintiff had not sustained the injuries alleged. The issue being litigated was whether or not plaintiff suffered injuries proximately caused by defendants' negligence.
We have examined the further arguments of defendants in regard to the charge of the judge and defendants' requests to charge. We find no merit whatsoever in defendants' claims in that regard. The charge was a very fair one and complete.
Defendants claim that the verdict was against the great weight of the evidence principally because the jury should have believed the testimony of the disinterested witness who saw the entire accident and whose testimony was in contradiction of other witnesses. There is no merit in defendants' contention. It was for the jury to decide whom to believe.
We have examined the other questions raised by defendants in their brief and do not believe that they have sufficient merit to require further discussion.
Judgment against defendants is affirmed, with costs to plaintiff.
BUSHNELL, C.J., and SHARPE, BOYLES, REID, NORTH, DETHMERS, and CARR, JJ., concurred.