LINABERY
v.
LaVASSEUR.
Docket Nos. 58, 59, Calendar Nos. 47,974, 47,975.
Supreme Court of Michigan.
Decided February 26, 1960. Rehearing denied April 11, 1960.Leitson & Dean, for plaintiffs.
Milliken & Magee, for defendants.
DETHMERS, C.J.
Plaintiffs in these 2 cases are husband and wife. Suit is for costs of automobile repairs and for damages resulting from the wife's personal injuries caused by one of the defendants driving a tractor-trailer, owned by the other, into the rear of the automobile owned by the husband and then being operated by the wife, hereinafter called the plaintiff. The 2 cases were consolidated for trial as they are on appeal here. Plaintiffs appeal from a jury verdict of no cause for action and denial of their motions for new trial.
The plaintiff was driving the automobile, at a rate of speed of 35 miles per hour, in the lane next to the center line of a 4-lane city street, along the left side of a bus traveling in the same direction. The tractor-trailer was following the bus, in the outer lane, at about 25 miles per hour. The bus slowed down, *125 whereupon defendant driver turned into the center lane behind the plaintiff, and accelerated to pass the bus. Plaintiff testified that when the bus slowed down, she did so also, applying the brake and reducing her speed from 35 to about 15 or 20 miles per hour. Defendant driver testified, however, that she made a sudden stop. Plaintiff testified that she had not intended to stop, and she gave no reason why either stopping or decelerating was necessary. She testified that she knew the traffic was heavy, but that she did not look at her rear-view mirror or look back at all, that she never saw defendants' truck before it struck her, and that she did not give any signal of her intention to slow down. As soon as defendant driver noticed plaintiff slow down, or, as he termed it, suddenly stop, he "slammed" his brakes on, but was unable to avoid striking the rear of the automobile with the front of the tractor-trailer.
The question whether defendant driver was guilty of negligence as a matter of law, mentioned in plaintiffs' brief, was not raised below, either by requests to charge, or by motions for directed verdict or judgment non obstante veredicto. It is not before us.
Plaintiffs say the verdict is contrary to the great weight of the evidence. Whatever may be the conflicting views as to the question of defendant driver's negligence, as may be gathered from the opinions in Sun Oil Co. v. Seamon, 349 Mich. 387, evidence of the conduct of the plaintiff in the instant case presented a jury question as to her contributory negligence, and a finding against her by the jury on the question cannot be said to be against the great weight of the evidence.
Was it error for the court to fail to give plaintiffs' requested charge, in line with CLS 1956, § 257.402 (Stat Ann 1952 Rev § 9.2102), that defendant driver's striking the rear of plaintiffs' vehicle makes him prima facie guilty of negligence? Plaintiffs say yes, *126 citing Gordon v. Hartwick, 325 Mich. 534 and Corbin v. Yellow Cab Co., 349 Mich. 434. Gordon was tried without a jury, thus presenting no question as to instructions. While the opinion contains a statement that a "rear-end collision is presumptive evidence of negligence on the part of the driver of the following car," decision did not turn on the question of a presumption or of prima facie negligence, but on whether a finding of no negligence was against the clear preponderance of the evidence. In Corbin, as distinguished from the instant case, plaintiff had good reason to stop, for a train and line up of cars ahead of her, she saw defendant approaching behind her, signalled her intention of stopping, and came to a stop slowly. In that case this Court, in finding, under the evidence or paucity thereof in that case, no error in the trial court's instruction similar to that here requested by plaintiffs, nonetheless said concerning the presumption here in question (p 440), that "It is the rule that in the absence of evidence, the presumption applies." There was no absence of such evidence at bar. On the contrary, there was evidence that the plaintiff either slowed down or stopped suddenly, for no apparent reason, without giving any signal of her intent so to do. Here there was evidence which, as said in the case of Patt v. Dilley, 273 Mich. 601, caused the presumption to disappear. As held in that case, under such circumstances, the giving of an instruction, as plaintiffs requested, would have been error. This evidence would also bring into play the reasoning and holding in Rossien v. Berry, 305 Mich. 693, that it was not, as plaintiffs here claim, error for the court to give an instruction on the question of a sudden emergency confronting defendant driver.
Plaintiffs complain of being curtailed by the court in the cross-examination of defendant driver. No showing is made of undue curtailing, that the examination *127 was other than repetitious, as the court styled it, what it was that plaintiffs expected to show that had not already been developed, or how plaintiffs were prejudiced in this connection. We find no error on this account.
Plaintiffs complain of the court permitting defendants' counsel to argue incorrect law, without itself correcting it. The criticized argument related to a subject of little and but indirect significance to the case, serving, at most, to reflect on the plaintiff as a witness. Plaintiffs' counsel immediately objected to the argument, it was not pursued further by defendants' counsel, plaintiffs made no request to charge on the subject, and the court gave none. No prejudicial error resulted.
Trial commenced on Wednesday, May 28, 1958, continued on Thursday, May 29th, and, at the end of that day, was adjourned over the Memorial Day week end until Tuesday, June 3d. On the latter date one additional witness was sworn and testified, counsel made their arguments, the court charged the jurors, and they returned their verdict. On June 1, 1958, Michigan Court Rule No 23, § 3a, became effective "in all negligence cases tried after the effective date" thereof.[*] It provided that "the contributory negligence of the plaintiff shall be deemed to be a matter of affirmative defense to be pleaded and proved by defendant." Prior thereto the burden was on plaintiff to prove her freedom from contributory negligence. Plaintiffs charge error on the court's refusal to charge, as plaintiffs requested, that the burden of proof was on defendants to show the plaintiff was guilty of contributory negligence and charging them, instead, that the burden was on plaintiff to prove her freedom therefrom. The new section 3a also provides that "in cases pending as of the effective *128 date of this rule, amendments to pleadings to conform to its provisions shall be granted on motion filed prior to trial." It is obvious that in this case, tried almost entirely before the effective date of the new rule, it was impossible on that date to grant amendment to the pleadings to which a motion filed prior to trial was prerequisite, there having been no requirement for filing such motion before June 1st. The quoted language as to amendments makes it plain that no such switch of rules was intended to become controlling in the midst of the trial of a lawsuit. This was not a case tried after the effective date of the new rule. The court's charge was correct.
Plaintiffs also complain of the court's instructions as to definition of contributory negligence and its application and refusing to give plaintiffs' requests relative to amount of care required of the respective parties. The instructions in their entirety adequately, fairly, and correctly covered these subjects.
Affirmed, with costs to defendants.
CARR, KELLY, SMITH, and EDWARDS, JJ., concurred with DETHMERS, C.J.
BLACK, J. (dissenting).
The majority opinion does not adequately inform the profession with respect to plaintiffs' request to charge No. 13.[*] The request was instructionally proper for both cases and, as to form, fits our recently announced departure from certain finical notions found in some cases which, for a time, repudiated the good sense of Gillett v. Michigan *129 United Traction Co., 205 Mich. 410. The scroll of this Court's return to the evidentiary principles of Gillett may be unrolled and read commencing with Hett v. Duffy, 316 Mich. 456, and continuing through Steger v. Blanchard, 350 Mich. 579; Weller v. Mancha, 351 Mich. 50; Shaw v. Bashore, 353 Mich. 31; Steger v. Blanchard, 353 Mich. 140; Weller v. Mancha, 353 Mich. 189; and Britten v. Updyke, 357 Mich. 466.
These plaintiffs under the cited cases were entitled on request to proper instruction that the statutory presumption of negligence should be applied to the issue of actionable negligence as charged "unless they [the members of the jury] found contrary and credible testimony."[**] And Corbin v. Yellow Cab Co., 349 Mich. 434, 440, when it is read in proper context without deletion of the very vitals of the concluding paragraph of the opinion, clearly supports the propriety of plaintiffs' said request No. 13.
On such ground I disagree with the conclusion of the Court that "there was evidence which, as said in the case of Patt v. Dilley, 273 Mich. 601, caused the presumption to disappear." Whether such presumption did or did not disappear was a jury question for a properly instructed jury; not the trial judge.
I would reverse.
KAVANAGH, J., concurred with BLACK, J.
SOURIS, J., took no part in the decision of this case.
NOTES
[*] See 352 Mich. xiv. REPORTER.
[*] After proper quotation of the statute (CLS 1956, § 257.402 [Stat Ann 1952 Rev § 9.2102]) plaintiffs' said request proceeds relevantly as follows:
"If the party to this action violated the statute just read to you, the presumption arrives that he was negligent. This presumption is not a conclusive one. It may be overcome by other evidence showing that under all the circumstances surrounding the event the conduct in question was excusable, justifiable, and such which might reasonably have been expected from a person of ordinary prudence."
[**] Quotation from Britten v. Updyke at page 473.