*1 City of Dearborn CITY OF DEARBORN v. BACILA. Contributory Negligence Automobiles — —Intersection—Left
1. Nonjury Finding in Case —Evidence. Turn — finding judge’s plaintiff’s guilty of driver con- Cireuit tributory negligence when its ear collided with left- defendant’s turning ear at 1 a.m. at a street intersection controlled held, light presented nonjury traffic sustained evidence case, appearing driver either had not made might observations for other traffic that enter the intersection ahead of him or that he failed to see the ear at defendant’s any prior 1956, impact (CLS instant 257.- § 650). Pleading Contributory Negligence 2. — —Affirmative Defense. 1958, 1, contributory negligence Effective June of a pleaded is deemed to matter be a of affirmative defense to be proved by (Court 3a, 23, defendant Rule No as added § April 14, 1958).
Appeal Wayne; (Carl M.), from Weideman J. January (Docket Submitted 10, 1958. No. 38, Calen- 47,410.) dar No. Decided June 1958. municipal
Case cor- Dearborn, poration, against damages resulting Eli Bacila for Judgment from automobile collision. for defendant. appeals. Plaintiff Affirmed. Corporation
Bale Fillmore, H. Counsel, Carl Corporation plain- Carlow, P. Assistant Counsel, tiff.
Cary Campbell, counsel), {Robert & BeGole B.
for defendant.
[1] 5A Am Jur, References Automobiles and for Points Highway in Headnotes Traffic §§ 713. Reports.- a traffic ac- has resulted This case Carr, J. occurring city on the 17th Dearborn in the cident approximately April, 1 o’clock 1955, at *2 morning. a in member driving the occasion On city department an police was of the the northerly by plaintiff direc- in a automobile owned tion Miller road. highway said At the intersection of. Eagle po- Eagle the Pass, street, with operated the an automobile lice car collided with Claiming in the at fault latter was defendant. municipal brought in the matter, an action was city damages, recovery al- of the for court being leged $1,000 in excess of amount thereof alleged negligence on filed declaration waived. The making part left turn -with- in of the defendant against proceeding proper observations, and in out light. filed To the declaration defendant a red reserving plea general issue, therein of the right detailed answer file at a later date a plaintiff’s pleading. from the It does not appear trial in however, that this done. The record, was plain- judgment municipal in a for the tiff, court resulted appealed. which defendant parties In to the cause waived the circuit court the right jury matter heard trial, to a and the was judge. support In its claim the circuit before testimony police plaintiff of the of- introduced driving Monberg, the auto- ficer, who was Harold produced officer as witness another mobile, and also riding car the time of accident. who was testimony plaintiff’s for counsel At the conclusion judgment for “on basis made a motion defendant plaintiff’s support proofs.” motion In said of the Monberg, specifically in it the that Officer was claimed operation to make failed vehicle, intersection, proper entered as he observations and'prior in care he exercised due had thereto, position respect avoid he been would have v. ok Dearborn consequence, accident, that, on the basis proofs plaintiff of the submitted not entitled was granted The motion recover. was for the reason asserted counsel in his motion, defendant’s plaintiff further reason that had not intro- damages duced as to the amount sustained Judgment by it. in defendant’s favor entered accordingly, appealed. has
At the time of the accident Miller road was a di- thoroughfare, vided north and south with 3 lanes provision for northbound traffic and like for south- Eagle bound traffic. North and south of Pass the highway separated sections were a so- approximately island, called 8 feet in In width.
center of said intersection was a concrete structure light. may on which was located a traffic It be noted in this connection that was, the intersection at the protected by question, time of the occurrence in *3 signal lights designed regulate passing traffic through it. proofs police ap- indicated that
Plaintiff’s car proached proximately speed ap- the intersection at a rate per Monberg hour,
35 miles that Officer did not decrease said rate as he entered and at- tempted pass through intersection, that appeared he did not see car it defendant’s until di- rectly in front of him in the middle lane for north- disposition bound traffic. In of the view manner of testimony Monberg of the case the comes of of Officer be- controlling significance. testifying After approached that as he the intersection he noted that light against the traffic was red northbound traffic standing Miller and that 3 road, on cars were at waiting signal change, intersection for following testimony indicates the situation that the immediately prior witness claimed existed to and at the time collision between the cars: 102 . 353 you you these cars when saw “Q. do did What
n waiting you, light, that in front officer, red for a is? simple, I was about “A. to make think, i lined The 3 cars were the intersection. feet behind green light. light up, stopped turned the red proceeded the intersection on across these cars my going green light, course, I continued on the north. proceed through up and “Q. Bid these start cars you the intersec- the intersection before tion? arrived Yes. “A. your with a “Q. here, we car So then now have They green, you. light have and 3 cars ahead of clear you, right? beyond gone “A. Yes. you happened “Q. us what arrived at tell Nov/, the intersection? green on the “A. As entered the intersection coming light, turn car south on Miller road made fast me
in front of and collision occurred.” Following explanation the witness as an he the collision, time of at the were where cars testimony as follows: continued his portion front Court: The “The appears defendant, car driven to strike ear at the right? right wheel, rear Yes. “A. Campbell: correct. That is “Mr. striking you the other remember “Q. that where Is car? post the center Approximately there, between “A. pink there, on the car. rear fender *4 post rear fender “Q. center Between the nn pink car? way approximately hap- That “A. Yes. just right pened, then here, about from the so, collision;our car— Bacila. Dearborn ok just want that at the moment. mind Never “Q. you where you remember, as best us, show you impact remember, if don’t point was, and us. tell approximately it. “A. That is “Q. Now7, just I be occurred, this collision before you light green, you that the lieve were about here to the testified that —from time Now, here. between you point did collided, cars where any officer?. at time see other car, the other car was a blue “A. No. All I saw car. flash in front of scout right? say “Q. instant, is that You an snaps just just (Witness “A. Yes, an instant. — fingers.) any you “Q. Now, after this accident, did driving discussion with the man who the other w7as car?
“A. Yes. today?
“Q. he Is here court Yes,
“A. he is. “Q. he? Where is gentleman “A. The sport in the checkerboard jacket. Campbell: Referring
“Mr. to the defendant, Eli “Mr. Garlow: Yes. you “Q. Did discuss how7 happened, this accident with Mr. you? did he Bacila, discuss it w7ith “A. I asked him how light. come he run the red thought enough He he said he had time.” following testimony on cross-examination fur- explain ther tends to the situation at the time of the accident, basis the action of the circuit judge granting defendant’s motion at con- proofs: clusion of Monberg, you “Q. Now, Officer when saw the 3 you cars ahead Miller, the' intersection, I you you at that believe back from testified were 150 feet right? intersection, is that *5 353 104 tbe inter- Approximately feet back
“A. section. your speed time? at that “Q. was What Approximately an 35 miles hour. “A. speed limit on Miller? “Q. What is an hour. *‘A. 35 miles green light turned at that “Q. And about you proceeded, cor- is that ahead the 3 cars and rect? sir. Yes, “A. you the northbound center “Q. Were that time? Miller at travel of lanes center lane. I in the was Yes, “A. change didn’t “Q. You lane.s? change lanes. didn’t “A. I speed you your the in- entered as was “Q. What Eagle Pass? of Miller tersection Approximately Still hour. miles an “A. “Q. “A. Yes. 35? light for north- color of “Q. what was the And traffic? Miller southbound
bound green. was “A. It that. time—strike the first was “Q. Now, when you the other as flash, saw a blue stated'that You correct? car, that flash of the color. Yes,
“A. “Q. you seen that had the first time Was ? other car I the other car. time saw the first “A. That is you already into the intersection were “Q. And time? was intersection. “A. I what you flash, did the blue saw “Q. And when you do? was a colli- there flash, I saw “A. As soon sion. put your brakes? didn’t “Q. You
“A. I didn’t time. City, Dearborn ok your didn’t off:the “Q. You take foot accelerator? my I took off Oh, “A. believe foot the acceler- any braking. I don’t ator, believe there but you any attempt right “Q. Did make turn left to avoid the collision? *6 really I not, “A. I don’t remember if did or be- soon as the occurred, cause as turned collision we were post into a on around, went backwards opposite the corner. you “Q. the which Now, other have identified car, position yon as a already it in flash, blue wa<s the you indicated on the board,-at time that saw it? My “A. as we—this car around Just came here.
lights of on, course, were and all I saw was the flash coming car, flash, blue color the car, through the intersection. Just at instant I saw color car, collision occurred. you say “The Court: "When flash, blue it wasn’t was it? flash, “A. itWell, was the color of the other auto- man’s mobile. you “The Court: What saw, then, was a auto- blue you? mobile in front of “A. Yes. The color—the color across head- * * * lights my car. moving “Q. And the blue car from west to you east, I think said? moving “A. The car was across intersection, on a left turn. you “Q. I wonder if could tell us how far in front your scout car that you blue car was when first saw it? say approximately “A. I would 10 to 15 feet. your your knowledge “Q. of So own own ob- you servations, know don’t that the blue car had traveling been south Miller and made a left turn you? in front coming, “A. didn’t see the car south on Miller, no. your your “Q. That is deduction, observation, right?
is that my yes, my “A. That deduction.” is — testimony police of the other officerindicated concerning opera- that he was not himself with the police Apparently tion of the were car. his observations general immediately before the nature, looking collision occurred he had been to the east. He did not notice defendant’s car until was im- mediately proceed- front vehicle and iiig tify easterly in an He direction. was unable to tes- speed
toas of either vehicle. stressing In their conduct, claim as to defendant’s appellant counsel for call attention to CLS (Stat § 9.2350), § 257.650 Ann 1952 Rev which reads- as follows: of a vehicle within an intersection “The driver yield right-of-
intending left to turn to the shall *7 way any approaching opposite from the to vehicle which within the or close direction is intersection so hazard, thereto as to constitute an immediate but yielded having having given driver, said a so signal required by chapter, may when and as make such left turn and the drivers of all other ve- 'approaching oppo- hicles the intersection from said yield right-of-way site direction shall to ve- the making hicle the left Provided, turn: That at an signal intersection at which a located, traffic intending permit driver to make a left turn shall straight through opposite- vehicles bound in the awaiting go signal pass direction which are to through making the intersection before the turn.” interpretation of the above section was con in Neander sidered v. 295, Mich Clamp ett, where it was said: plaintiff says charg- “Next, that the court erred in
ing that after defendant entered the intersection required yield approach- he was to to vehicles 19.58] '107 ok Dearborn which, opposite ing direction, were either give appropri- intersection, near the signal, might proceed ate and that then he to turn approaching left and that other vehicles from' the opposite required instruction greater at a direction distance were then n yield right-of-way to defendant'. The § inwas accord with 257.-650 CLS (Stat 9.2350), § Ann 1952Rev and was not in error. improperly given Plaintiff’s contention that it was appears quired under a position to stem from her that the law re- entering defendant, after the -intersection green light, stop favorable and wait for change light completing traffic before statutory left turn. We are cited to no or ordinance authority for that view.” -argument Plaintiff’s undertakes to assume that de- guilty violating fendant was the statute. view In police of the fact, however, that the car was at least light 150 feet south of the intersection when the precise turned, and in the absence as to the location of defendant’s time, automobile at the propriety assumption open question. Apparently plaintiff relies to some extent on an city pleaded ordinance which was not or of- fered in judge evidence in However, case. circuit judgment ground
entered for defendant on the had not established the freedom of contributory negligence, finding- its driver from being plaintiff’s proofs indicating based police either the driver car had not made might observations for other traffic that enter the intersection ahead of or that he had him, failed to see any prior defendant’s automobile at to the impact. instant of employee
Plaintiff’s making owed *8 proper ap- for' observations other traffic as he proached and entered the intersection. There was nothing prevent to the observance of such driving precautions in reasonable
the exercise that through It must be assumed the intersection. rights of other drivers to use had in mind he testimony on which think intersection. We the the clearly supported judgment the fac- based was testimony judge. findings The tual of the circuit length, plaintiff’s forth at some driver, above set clearly The that existed. indicates situation analogous to the situa- facts here involved are in Mich 264. Eisenlord, tion Travis v. shown main In view of the conclusion reached on the unnecessary to consider issue, becomes proof the effect of offer of dam- failure to parties ages on the trial circuit in court. The are municipal apparently in that court accord stipulation trial there recovery as to the amount of was plaintiff damages. if was found entitled to suggested, any, given however, effect, if As be. require stipulation in circuit court does not determination. judgment
The entered in circuit court is affirmed. may have Defendant costs. concurred with J., C. J.,
Dethmers, Kelly, Carr, J. (concurring affirmance). negli- J. This Black,
gence jury. tried to the case was court without judge’s finding The trial either fact, viewed disprove contributory had failed fault affirmatively-—that plaintiff guilty of such or— consequent ruling fault, his defendant on judgment the whole record was entitled in his supported by proof are favor, substantial and in- ference the trier of facts was entitled to accept reject. finding legally equiva- is thus jury lent to a verdict for defendant had the case jury-tried according been instructions based *9 City 109 ok Dearborn v. Eisenlord, Travis v. 256 Mich. 264 Barron v. Mich 213. Detroit, of recently haveWe considered onr limited function appellant reviewing by authority when the of — (1945) language Rule No 64 in Court —insists judgment against rule the court “that the preponderance (Schneider the evidence” v. Pomerville, 348 49; Mich Northwest Auto Co. v. Mul
ligan Lincoln-Mercury, Inc.,
Here, of-way by permission over defendant and command signals, Monberg of the intersectional traffic control nevertheless did not see car until the defendant’s approached left) (from Monberg’s latter and had nearly path Monberg cleared the intended of the car driving. duly by Judge fact, was man, This found "Weide- complete
indicates failure of lookout ahead part on the the officer. It therefore furnished evidentiary ample support judge’s ruling for “that had not established freedom of contributory negligence” (quotation from driver its opinion, 107). p ante, Mr. Justice Carr’s light, Viewing finding as we do in such being remaining question, no there reviewable our . end. ordinarily would ease appellate hangs the and since Nevertheless, —like at midnight apartment in the overhead shoe second ques- on and I would balance, go —in apprehensive and sense intent the wisdom with purposeful tion known to what adherence continued Michigan’s of proof *10 the dual burden trial in most offices cases. negligence of Northwestern of law Green, of school
Dean and thought today’s of wrote the nub university, way: purpose juris unanimity Anglo-American almost “With mat to a is held be contributory negligence dictions the defendant with the burden
ter of defense, a preponderance it by and sustain the defense plead the beginning- which in courts the evidence. The court supreme as did made the same mistake burden on the plaintiff, placing- Illinois in either or altogether the mistake partially corrected had it them by legislation. or have corrected a been done has seldom by legislation job When severity alone in the one. stands thorough Illinois on the plaint with which its courts burden place iff.* him- purge required be should “Why an action against can maintain before he of fault self that no It said defendant? is sometimes negligent as a claimant should inasmuch rule is logical other he that he until shows to recover not be permitted own This injury. to his not contribute
himself did
It
assumes
course,
question.
begs
argument,
say
It
logical
is equally
issue.
point
himself who
a conceded
defendant,
wrongdoer
the whole loss on the
by throwing
to escape
seeks
today,
unorthodox rule.
with
was on
not
Frenier
This,
required.”
Illinois,
has
v.
Brown,
first
yielded respectfully
plaintiff,
qualifies
(Smith
Vermont,
116 Vt 538
her stand
direct and
place
v.
suggest,
Grove,
one
to no
[80
by holding
A2d
affirmative
isn’t
State in harsh
521].)
few
Vt
quite
106,
(if
proof
true.
“although
application
of due eare was
[119
Michigan,
sole)
sueli
A2d
liold-outs
burden
880];
until
Ill
v. ok Dearborn
plaintiff,
compelled
plain-
should be
to establish the
wrongdoing. Logical
validity
tiff’s
until the
the
the
deduction has no
premises
agreed upon,
are
and here it is
premises
question.
that are in
The allocation of
pleading
generally
onus
con-
parties
ceded to be based on what is fair to the
convenient to administration
the courts. On
premises
opinion
these
the almost unanimous
is that
contributory negligence
pleaded
is a
defense
be
supported by
(39
the defendant.”
L
Illinois
pp 116,
126).
Bev, 1944-1945,
quiddity Michigan’s
continued attachment
wholly
to this
discredited doctrine*—of dual burden
negligence
subject
cases—is no new
of discussion
lawyers
among
judges
of our State. As in the
Michigan’s
instance
last
stand on
of im
hills
puted negligence (compare Chief Justice Mc
dissent in Lachow v.
Justice Smith’s recent in Sun Oil Company precedent 349 Mich 387, 404, Seamon, debate argument duly and been afforded. Shall we keep passing move, shall we on the buck to the legislature, purely adjective judge-made in this of field the law of evidence? I view the as our renounced Negligence. The on Evidence [3d [*] † The This Plaintiff-, prevailing paper by Should 'this Bears The Burden Of Proof was headed: ed], opinion rule' Michigan § is is the known pp 372, 373). “In Other States The Conform?” opposite one as the “orthodox” one. The —unorthodox. Respecting Contributory . ,,..... n Defendant, (9 Wigmore Not (cid:127) experience, of it found in the fullness If,
own. instance) appears of (and a rule in this so it changed or be procedure of should or rule evidence judiciary guilty continuant becomes amended, legis lethargy to the it and leaves' when fault sits duty resting primarily its on shoulders.* lature commenting “The Path Mr. Holmes, Justice thought-way He Law,” here. said leads Leg*al p (Collected Papers, Holmes, Wendell Oliver 187) : revolting “It no better reason a rule to have in the time of law than that so it was laid down revolting Henry of grounds IV. It is still more if upon which was laid down have vanished long simply persists the rule blind since, past.” imitation of the (of Judge distinguished Frank The late and path judicial circuit) follows Federal 2d Holmes way: groups professional “Especially or other are ways. specialists scientists, to Even the natural set addicted inspired by spirit presumably in- adventuring, free of are no means stick- tellectual profession is almost as medical in-the-mudism. Partly legal. precedent-ridden de- much ways past a sort involves of ancestor- to votion predecessors worship one’s is often ; veneration for malee their to be doubted.” legislature only courts own original statute, has the p 46, “In “The long power rules adding healthy recent usually —thus rules of evidence were been under specific judicial own rules to formulate from time procedure times, movement obscuring failed to quotation (1 Wigmore constitutional function way. procedure, has been vindicated historically just prerogative of the courts to make their change rules which That this relegate, constitutionally text.) alter the rules invented limitations). Evidence [3d including rules of evidence made prerogative of generally, procedure to natural reformatory empowers the courts the courts. proved function of the courts. Virtually ed], professional opinion; evidence the courts [1957] undesirable, alterations the But as the all of Cum ought not (subject includes courts *12 Supp, to 113 ok Dearborn v. Partly precedents. sticking to given as a reason pride: Judges, others, and like .doctors it involves they Then, made mistakes. admit reluctant to are plain It’s animal laziness. too, there is old-fashioned you settled. Out have once to revise what a nuisance ‘one what Holmes called laziness comes of such the en- law,’ of the that ‘ideas become misfortunes long phrases cysted for a and thereafter analysis.’” (Courts provoke further On cease University Press, Princeton Prank, Jerome Trial, 273). pp 272, 1950, writing point in to the Van Mr. Justice Voelker, Dorpel Company, 146, Mich Haven-Busch 135, squarely responsibility at our laid corrective door in these words: reject legally and un- “We as both un-Christian hopeless
sound the doctrine that this Court is helpless from own shackled and to redeem itself its original doned.” long however or con- sin, whomever this rule of dual burden of Holmes In the words unanimously given revolting quite for reasons is refuse to I, least, and authorities,* all modern though past blindly it becomes dead even imitate its acknowledge correct the error a nuisance step good reason are out of for no thereof. We by presents move to the cadenced I would these legal times. music judicata, not, is like the rule of res decisis
“Stare inexorable command. ‘The rule of universal, stare consistency though tending one decisis, uni- formity not inflexible. is Whether it decision, departed from a be followed en- shall tirely court, within the discretion of the which and Mr. Justice Smith in Sun § 2507 in 1957 Cum Wigmore See Restatement, on Evidence Supp; Torts, (3d 38 Am ed), Oil, supra. § 477, Jur, § p 1250; Negligence, pp 373-375 eases collected § pp 977-979; notes under notes,
114
353
upon
again
to consider a
called
once decided.’
Woodman,
212,
205,
v.
218 US
30 S
rtz
Ct
He
*
**
1001).
54 ed
The court bows to the
621, L
experience and the
of
of
force
better reason
lessons
ing, recognizing
process
error,
that
of trial and
physical
appropriate
sciences,
in the
fruitful
so
also
is
judicial
(Mr.
function.”
Justice Brandéis
393,
Burnet v. Coronado
&
Co.,
in
Oil Gas
285 US
815].)
[52 S
L
443, 76
405-408
Ct
ed
1915 an honored
Mr.
writer in
of
Wheeler,
Justice
(Dwy
oft-quoted passage
Con
of
v.
and
dissent
[92
270]),
891,
99
A
LRA
883,
89
Co.,
74,
necticut
1915E,
Conn
passage
1918D,
which
800, Ann Cas
play mating
in
his-
Mr. Justice Cardozo called into
deathless
point-ultimate
decisis,* dis
anent stare
colleagues
again (1930)
agreed
his
in Kotler
with
(151
Lalley,
438,.
86,
433,
103
A
100, 101,
v.
112 Conn
439),†
respect
with
court
this time
to the
his
wholly unsupported
the outmoded and
abolish
disproving
plaintiff
that the
rule
contributory
bears the burden of
* * *
said,
He
in Kotler:
fault.‡
prove
plaintiff
requiring
own
his
a
“The rule
injury
negligence in
of an
done
case
from
freedom
imposed upon
by
a
him
defendant
required
negative
or never
which is seldom
burden,
point
legal
of view no-
Prom
in other actions.
anomaly
supporting
in
ever succeeded
one has
Dorpel
tion
Bricker
unorthodox
report,
when
whielx
which
from
Stabile
‡
†
have determined
All members of the
Connecticut
“There should
when
Dwy,
in
this sentence was
v.
Atlantic
v.
years.”
v.
its
Haven-Busch
D. N.
Green,
gained
rule “is an
see “The
origin
&
rule
later moved to
citation,
(For
313 Mich
be
a new
Transportation
to be discarded
it was the
the conduct of the
greater
Nature of the Judicial
unjust
Company,
taken,
significance
pp
court, signing
complete
i
90 and
readiness
one.”
including
product
^
234,
350 Mich
Co.,
may
or
(See
orthodox rule
and extended
to abandon an untenable
.had- been. Federal at tbe time courts States (1913) tbe latest Redfield issued Shearman negligence, in in of their sec which, edition work say: weight authority ‘The tion the authors support in of the rule that the burden of upon contributory negligence defendant completely overwhelming that we now so omit most argument favor, *14 our own its contained ear majority lier when a the editions, decisions were way. other then that our We own view of stated entirely agreed expressed by the with Judge the late Duer. Johnson v. Hudson River R. (12 Super) judge Co., 5 Duer NY 21. That able held negligence matter of defense to be part plaintiff on the of the to a mere be proved affirmatively by the although might, defendant, it be inferred course, proved by plaintiff. from the circumstances the * # * only 10 When out of 45 adhere States by supreme a rule condemned the court of the United it States, would be waste of time to discuss the * * * question further.’ governing “The common which law, is the force of product growth. life,
our is the of slow and measured “Legislation not does know its established meth- flexibility capacity adap- ods not and has its for tation. grave delegate “It ais error for a court to to the legislature knocking the which is loud at its door.” agree with these and, sentiments without further
working past judicial adopt over of stasis, move to guidance following compre- of bench and bar the appearing Negligence, hensive rules in 38 Am Jur, pp § 977-979 as follows: contributory negligence “The doctrine is not part plaintiff’s of the of action, cause but is a de- other de- alleged proved any
fense to be like by greater fense, maintained in is far the number n plaintiff country. has All that of to do in the first States prima, make out a instance is to negligence against In defendant. facie case these contributory negligence jurisdictions, is con- aof confes- in the nature to be a defense sidered sion admits necessarily Standing it alone, avoidance. plaintiff injured by negli- that the was gence of It is to be an affirm- the defendant. said any of an affirm- ative defense. Like ative to jury. other defense upon is defendant character, the burden satisfaction of establish it to reasonable affirmatively showing It must be made out only that plaintiff guilty negligence, that the cooperated negli- negligence with the but injury. produce gence How- defendant proving having con- ever, a burden defendant any tributory dence rule as may negligence evi- avail himself supplied on the issue. negligence proving contributory often un- that the is on defendant burden stated be it. It own evidence establishes less ceases, can said that the reason of the rule plaintiff, application, no when the his own part, negligence on his and that such evidence, shows injury negligence re- aided or contributed to *15 By a he defense evidence establishes ceived. to his own action as much if the same facts were as by proved the defendant pp 1251; 1250, Torts, §477, Restatement, and in :vie. prima case, the facie plaintiff out a makes the “If upon plaintiff’s contrib- he relies if defendant, prove this However, does negligence, it.
utory must pro- necessarily defendant must that mean evi- The own effect. to this evidence duce guilty clearly of contribu- may him show so dence require direct trial court to negligence tory toas may that the be such or the defendant for a verdict finding Indeed, circum- for him. jury warranted be would proving the happens that in frequently or Dearborn prima facie lia- the defendant’s which show stances go fully bility plaintiff compelled to so into require permit the court or matter as to "the whole contributory negli- jury guilty him find plain- gence. tiff’s to make the If the evidence is such as contributory negligence for the the request .jury, proper will instruct the court on plain- they .jury for the must render verdict they preponderance of all find from tiff unless by produced the defendant or whether (cid:127)evidence, guilty plaintiff plaintiff both, that the was injury.” negligence (cid:127)of which contributed his long There is no need for extended review standing the or- at war with line of cases penin- make effective thodox rule now would supporting language the unortho- All sular State. should be overruled. rule, therein, contained
dox with to defendant. affirmance, I concur in costs 1958): (June Supplement 11, opinion to and foregoing distributed 1958. March on Brothers of our
(cid:127)consideration
impetus
thereof we
the interim
In
No 23*
Rule
^adopted
3a of Court
section
new
by opin
case
written
has
Mr. Justice
ion dated
Edwards
now
May
has
section 3a
14, 1958. Since
undersigned
it inadvisable
deem
gone
effect, the
into
containing
it does
opinion
March
11th—
3a—be
“ground
of said section
rules”
intended
opinion
That
and bar.
from bench
further
withheld
-to
(cid:127)hereof,
defendants.
filed
“In eases
“This rule shall
(Adopted
pleadings to
be a
“See.
prior to
matter of
3a.
contributory negligenee of the
pending as of the
April
trial.
In all
eonform to
become
affirmative defense
1958.)
negligenee eases tried
effective
its
See
effective
provisions
with this day. clerk’s officethis “the that of issue bur-
Mr. Edwards writes Justice question contributory negli- on the den of respect, gence” due we disa- not us. With before past gree. Every years in assumed has this Court negligence apply rule of burden in dual question inspiration and saved of raised cases—on or ap- worth issue of and continued otherwise—the evidentiary plicability then and rule was of that starkly it. it is witness here, there before So opinion made Thus, of Mr. Justice Carr. and as responsibility foregoing opinion, clear in the steadily That action has remained ours. corrective responsibility finally recognized April in 14th, was unanimously year when 3a was section adopted on the Court’s motion. appellate hard fast rule that
There is no equity, sitting and, either in law cannot courts, important questions not raise and decide hence, do sponte. glance prec Indeed, sua a mere available contrary.* power True, edent is exercised disclose will sparingly with full realization and limitations inherent in the em the restrictions (in ployment us, Before however this case thereof. coming earlier of Dearborn as numberless cases monstrosity judge-invented legal here), ais ago. judge-destroyed many years should been finally apart stood and alone—with When impera all others, Illinois—from tive and thus was the action said section became conceived in this case of Dearborn depicts reports. 3a now our review will consider Wis Morton Salt as to raise and See Professor reversed —not L Rev 91); Co., decide Auditor General 258 Mich affirmed. Campbell’s question 231. thesis: properly In Thomas this Court went so on which a circuit court Bolt, “Extent raised and 147 Mich which 283; Thomas v. preserved.” courts of (7 judgment far *17 of Dearborn for that action re- duly have the reason would We corded. concurred JJ., Kavanagh, Voelker,
Smith, J. Black, with in result). The facts (concurring J.
Edwards, recited Brothers. by my have been amply this matter their result. concur in I opin Mr. Justice refrain from signing Black’s burden issue solely
ion because of the contributory negligence plain in the trial court or argued not presented tiff was n orbefore whether the issue be this Court. Further, one procedure, one substance as regarded settled, thereon has been of this Court the view April the Rule adopted unanimously my opinion, 14,1958.*
'Court Rule to tiled matter “This rule shall “In eases pleadings to conform “In all contributory negligenee prior of affirmative to trial. No pending negligence § beeome effective as 3a. defense to of the effective eases See to its 352 Mich tried after provisions be pleaded xiv. date of this the 1st shall the effective date shall be deemed to be be proved by day granted rule, June, amendments defendant. on motion hereof, 1958.''