Opinion
Docket No. 35, Calendar No. 42,716.
Decided December 1, 1944.
Appeal from Wayne; Moynihan (Joseph A.), J. Submitted October 10, 1944. (Docket No. 35, Calendar No. 42,716.) Decided December 1, 1944.
Case by Constance Resnik against Trumbull-Chevrolet Sales Company, a Michigan corporation, for personal injuries sustained in a collision between automobiles. Verdict and judgment for defendant. Plaintiff appeals. Affirmed.
David E. Flayer ( Maurice Miller, of counsel), for plaintiff.
Vandeveer Haggerty ( Fred L. Vandeveer, of counsel), for defendant.
Plaintiff brought the present action for damages for personal injuries growing out of an automobile collision. On February 3, 1942, at or about the hour of 2 p.m., plaintiff was driving an automobile in a northerly direction on Second Boulevard in the city of Detroit. Second Boulevard is a one-way street for traffic proceeding in a northerly direction. There were cars parked in the first lane next to the east curb and plaintiff was proceeding in the second lane of traffic. An automobile proceeding directly in front of plaintiff attempted to enter the first lane of traffic for the purpose of parking his car, causing plaintiff to slacken the speed of her car. At this time an employee of defendant company was driving one of its trucks directly behind plaintiff, at a distance of 20 to 25 feet. As plaintiff slowed down, defendant's truck struck the rear bumper of her car, resulting in personal injuries to plaintiff.
The cause came on for trial and at the close of plaintiff's testimony defendant company moved for a directed verdict upon the ground that "plaintiff herself is guilty of negligence which contributed to and is the proximate cause of any injury that she has sustained." The trial court denied the motion. Further testimony was introduced by defendant company and the cause submitted to a jury, which returned a verdict of no cause of action. Plaintiff appeals and urges that the charge of the court was argumentative and prejudicial; that the court erred in charging the jury several times that they could find both plaintiff and defendant to blame for the accident; that the court was in error in submitting the question of plaintiff's contributory negligence to the jury; and that it was error to deny plaintiff's motion for a new trial.
We are not in accord with the claim of plaintiff that the charge of the court was argumentative and prejudicial. It is fundamental that the charge of the court must be viewed as a whole. In the case at bar the principal elements of the charge related to the question of negligence, whether it was the negligence of defendant's driver or the contributory negligence of plaintiff.
We recognize that unnecessary repetition in a charge is argumentative and prejudicial (see Buchel v. Williams, 273 Mich. 132), but under the facts and circumstances in this case we cannot say that the trial court violated the above rule.
The principal question involved in this case relates to the contributory negligence of plaintiff. We have therefore set out the testimony bearing upon this issue.
Plaintiff testified that the accident happened at approximately the center of the block.
"As I was driving, the car in front of me parked and it was necessary for me to slow down. I stopped and signaled with my hand and applied my brakes. I know that my stop lights were working and that they were working before the time of this accident, and that they were working after the accident. I then looked in the mirror and saw a truck coming in back of me. I would say the truck was between 50 and 75 feet, or three car lengths, or four car lengths away after I came to a stop and looked, and it was approaching fast. * * *
"The truck was coming faster than 25 miles per hour and at that time I was in a stopped position and the truck hit me from the rear. * * *
"I did see the truck coming from my rear through that mirror which is on the left side of my convertible. I automatically look in the mirror when I slow down by applying my brakes, and that is the way I drive. I was in motion when I first saw the truck and I started to slow down at that time and as I started to slow down I looked in the mirror. * * *
"I did give a signal by my hand. I don't remember which hand but I think I signaled with my right hand. I signaled with my right hand like this (indicating with a sweep of the arm) inside the car. There was no particular reason why I did not signal with my left hand out of the window. The truck driver did see me signal because he told me he did. I said, `Didn't you see me signal?' and he said `Yes'. He did say that he saw me signal with my hand because I said `I signaled with my hand' and he said he saw that."
Steven Detvay, the driver of defendant's truck, testified as follows:
"As I moved north on Second in the second lane of travel I observed this car just made a complete fast stop, and there was nothing for me to do, just try to make my stop and it was too late. I did not see any signal given by that car and I was looking ahead. I did not observe any hand signal. Her car in front of me just made a dead stop and that is the only reason that made me stop."
He further testified that as he was going north he was about 20 feet to the rear of plaintiff's car and at the rate of speed he was travelling he could have stopped the truck in 25 to 30 feet.
Both parties rely upon Weaver v. Motor Transit Management Co., 252 Mich. 64. In the Weaver Case plaintiff was riding in an automobile which was followed by a bus owned and operated by defendant company. The bus travelled 35 to 40 feet to the rear of the car in which plaintiff was riding. An approaching car turned from the opposite line of traffic, and plaintiff's driver, in an effort to avoid a head-on collision, turned his car to the right and made a sudden stop. The bus collided into the rear of the car in which plaintiff was riding. We there said:
"Each case must be decided upon its own facts, and if it is made to appear that the driver ahead, in an emergency, brings his vehicle to a sudden stop without signal to a vehicle following at a reasonable distance to also stop, then the presumption of negligence is not to be indulged, unless opportunity to stop was afforded after need to do so was apparent."
The above rule is not helpful to plaintiff. It only applies when there is a sudden stopping of a car. In the case at bar plaintiff claimed that she slowed to a stop and gave a signal of her intention to stop. Defendant's driver claimed that she came to a sudden stop. There is testimony in support of each claim. It thus presented a question of fact for the determination of a jury. If plaintiff came to a sudden stop without giving ample warning to defendant's driver, then a jury could find that she was guilty of contributory negligence, or the jury could have found that under the circumstances of this case defendant's driver was faced with a sudden emergency and was not negligent in colliding into plaintiff's car. We cannot say that the verdict of the jury was contrary to the weight of the evidence. The trial court was not in error in denying plaintiff's motion for a new trial.
The judgment is affirmed, with costs to defendant company.
NORTH, C.J., and STARR, WIEST, BUTZEL, BUSHNELL, and REID, JJ., concurred with SHARPE, J. BOYLES, J., concurred in the result.