Mitcham v. City of Detroit

Carr, J.

(concurring). On June 7, 1947, plaintiff Burleigh Mitcham was a passenger for hire in a coach or bus owned and operated by defendant in the city of Detroit. Claiming that she was injured as a consequence of the negligent operation of the bus by defendant’s employee, Mrs. Mitcham instituted an action in the circuit court of Wayne county to recover damages. Her declaration alleged that the bus was operated in a careless and negligent manner, that due to such conduct she was thrown against an upright support and seats, and sustained severe injuries necessitating medical care and treatment. On the occasion in question plaintiff was accompanied by her husband, Sage Mitcham, who also sued to recover his-damages and expenditures incident to Mrs. Mitcham’s injuries. The 2 cases were consolidated for trial.

At the conclusion of plaintiffs’ proofs defendant moved for directed verdicts, alleging in support thereof that actionable negligence on the part of defendant had not been shown, that Mrs. Mitcham was guilty of contributory negligence, and that the evidence failed to establish that negligence on the part of defendant city was a proximate cause of injuries sustained by said plaintiff. Decision on the motion was reserved. Following the introduction of testimony on behalf of the defendant the motion was renewed, with like result. The jury returned verdicts in favor of the plaintiffs.

Motions for new trial and for judgments notwithstanding the verdicts were submitted by defendant, the latter motion being granted on the ground that actionable negligence on the part of the operator of *205 defendant’s bus had not been shown. On appeal the questions raised have reference to whether the proofs in support of Mrs. Mitcham’s alleged cause-of action presented issues of fact for determination by the jury. It is urged in her behalf that her testimony and that of her husband was sufficient to establish a prima facie case, and that the trial judge was-in error in granting judgment for defendant notwithstanding the verdict of the jury in her favor.. No questions are here raised with reference to the-husband’s right of recovery in his dependent action, other than the issues involved in the principal case. In view of the situation in this respect Mrs. Mitcham will be referred to herein as the plaintiff.

In determining whether the motion for judgment in defendant’s favor was properly granted the testimony, in accordance with the recognized rule, must be construed as strongly as reasonably possible in plaintiff’s favor. It is likewise true that no inference of negligence may be drawn from the mere fact that she sustained personal injuries on defendant’s-bus. Burghardt v. Detroit United Railway, 206 Mich 545 ( 5 ALR 1333 ); Fish v. Grand Trunk Western Railway, 275 Mich 718 ; Macres v. Coca-Cola Bottling Co., Inc., 290 Mich 567 ; Crase v. City of Detroit, 341 Mich 132 . The question at issue is whether the testimony introduced by plaintiff was sufficient to entitle her to have the questions of negligence, proximate-cause, and contributory negligence determined by the jury.

As before stated, defendant moved for a directed verdict at the conclusion of plaintiff’s proofs. Such procedure is expressly authorized by CL 1948, § 618.56 (Stat Ann § 27.1036). As amended by PA 1953, No 219, said section reads as follows:

“Upon the trial of any case in any court of record, except probate courts, in this State the defendant,, *206 upon the conclusion of the plaintiff’s testimony, may request the court to direct the jury to bring in a verdict for the defendant, or make demurrer to the •evidence, without resting his case absolutely.”

It is further provided by CL 1948, § 618.57 (Stat Ann § 27.1037), as amended by PA 1953, No 219, that:

“Upon the refusal of any judge of any court of record, except probate courts, in this State to grant such motion, the defendant shall have the benefit of an exception, as in ordinary cases, and without waiving such exception may then introduce testimony and make his defense upon the merits.”

Construing these 2 sections together it is apparent that the legislature in the enactment, and in the amendment thereof, intended to give to a defendant in an action of the nature here involved the right to make a motion for directed verdict at the conclusion of the plaintiff’s proofs and to have said motion determined on the basis of the record in the case at that time. Referring to the statutory provisions in question as they read prior to the amendments of 1953, which did not change the application thereof in a circuit court case, this Court, citing prior decisions, said in Snyder v. Johnson, 264 Mich 286, 288, 289 , after referring to the fact that defendant had made a motion at the conclusion of plaintiff’s proofs:

“The court reserved the motion, to hear all the testimony. The failure of the court to grant the motion was a denial of it. Johnson is entitled to review of the motion and its denial as of the time it was made. * * *

“Assuming that the Rice testimony raised a jury question of Johnson’s negligence, nevertheless, as no such question appeared at the conclusion of plaintiff’s case, and Johnson then was entitled to a directed verdict, the case must be reviewed without *207 reference to the Rice testimony, under the cited statutes.”

The interpretation of the statute as suggested in the holding in Snyder v. Johnson has been recognized in numerous subsequent cases, including Hilliker v. Jewel Oil & Gas Co., 277 Mich 615 ; Conant v. Bosworth, 332 Mich 51 ; Manning v. Bishop of Marquette, 345 Mich 130 ; Taylor v. Butcher, 349 Mich 581 .

In the final analysis the question is whether the testimony of plaintiff and her husband, construed in the light most favorable to her right of recovery,, was sufficient to require submission of the case to the jury. Plaintiff claimed in her testimony that the driver of the bus was driving in and out of traffic, that the bus was “weaving and turning,” and that, after swerving, the bus came to a sudden stop, resulting in her being thrown against a metal bar. The witness apparently had some difficulty in expressing herself, but the following excerpt from her testimony will indicate her claim as to how the driver of the bus operated it:

“He operated the bus this way, and this and that. Hand on the wheel to the right and left, right and left, and he continued this until this sudden stop. Just before he stopped he was cutting toward the north. Pulled over to the right. No, it wasn’t a slow cut. It was a sharp cut. And then I felt this sudden stop, no warning whatsoever.”

The witness further testified that she did not see any cars directly in front of the bus, but that there was “plenty of traffic.” The testimony given by plaintiff’s husband was substantially in accord with her statements. He claimed that the vehicle was “reeling and twisting” as it proceeded through traffic. The question presented is whether the testimony was of such character that the jury might properly *208 infer (as it apparently did) that the sndden stopping of the bus, with injuries to plaintiff, was a proximate result of the conduct of the operator.

This Court has passed on similar, situations in prior cases. In Adelsperger v. City of Detroit, 248 Mich 399 , plaintiff was a passenger for hire in a motor bus of the defendant. The seats being occupied, plaintiff was standing and holding to a handrail. There was testimony indicating that the driver of the bus sought to pass an automobile, that he accelerated his speed, that the bus swerved, that it came in close proximity to the automobile sought to be passed, and that a change in direction of said car caused the driver of the bus to make a sudden application of the brakes accompanied by a turn of the steering wheel. The plaintiff fell and suffered serious injuries. Defendant moved on the trial for a directed verdict on the ground that actionable negligence on its part had not been shown. Commenting thereon, it was said (pp 401, 402):

“In the instant case there is evidence of excessive and unlawful speed, which might be found to have important hearing on the suddenness and violence of the stopping and of the swerving of the bus, and hence a causal relation to plaintiff’s injuries. A peril produced in part, at least, by defendant’s negligence does not excuse the negligence. The case was for the jury.”

See, also, Fish v. Grand Trunk Western Railway, supra; Routhier v. City of Detroit, 338 Mich 449 (40 ALR2d 1114); and Wells v. Flint Trolley Coach, Inc., 352 Mich 35 . In the Routhier Case the facts were somewhat analogous to those in the case at bar. It was the claim of the plaintiff that her injuries resulted from a sudden application of the brakes by the driver of defendant’s bus following acts of negligence on the part of such driver with reference *209 to speed and without proper observations for traffic. It was held that such testimony was sufficient to raise an issue of fact for determination by the jury as to whether the negligent operation of the bus was a proximate cause of plaintiff’s injuries. There, as in the case at bar, defendant at the conclusion of plaintiff’s proofs had moved for a directed verdict, decision thereon being reserved. The jury returned a verdict in plaintiff’s favor, but it subsequently appeared that one of the members of the jury had not concurred therein. The trial judge, on motion, entered judgment for the defendant which this Court reversed, a new trial being ordered because of the situation presented with reference to the jury’s verdict.

In Wells v. Flint Trolley Coach, Inc., supra, plaintiff was injured while alighting from defendant’s bus on which she had been a passenger. After pointing out the nature of the duty that defendant owed for the safety of its passengers, and noting that such care was commensurate with the responsibility assumed, it was held that the testimony was sufficient to support a finding by the jury in plaintiff’s favor. It was declared (p 40) that the proofs “presented a question of fact for the jury as to whether defendant’s driver acted with the degree of care which the above cases state to be required of him and, if not, whether his failure so to do caused plaintiff’s injuries and, hence, whether he was guilty of negligence which was a proximate cause.”

Each case of this kind must be determined on the basis of the facts involved, with due consideration to applicable principles of law. In the instant case there was testimony from which the jury might: properly conclude that the driver of defendant’s bus: failed to exercise due care for the safety of his: passengers, that his conduct in weaving in and out: of traffic, in attempting to pass other vehicles, and: *210 otherwise operating the bns in an erratic manner, contributed to the necessity, if such there was, of suddenly applying the brakes. It was within the province of the jury to weigh the testimony and to determine therefrom if the conduct of defendant’s employee was negligent and constituted a proximate cause of the injuries sustained by plaintiff. The motion for judgment notwithstanding the verdict was erroneously granted. Defendant’s claim that its motion for a new trial should be granted because of statements in the charge to the jury with reference to the husband’s claim of right to recover for certain expenditures made by him is not meritorious and does not require extended discussion. The charge as given was not improper in view of the fact that the 2 cases were tried and submitted together.

The judgment is reversed and remanded with directions to set it aside and to enter judgment for plaintiff on the verdict of the jury.

Dethmers, C. J., and Kelly, J., concurred with Carr, J.