*1 Reports. HETT DUFFY. Appeal Weight Reviewable —Great 1. Questions Error — Evidence —Briefs. plaintiff against question as to whether verdict for great weight Supreme Court, of the evidence is not before the notwithstanding verdict, judg- defendant moved for directed trial, notwithstanding ap- ment verdict and new where the pellants’ present question. brief does not such Negligence Pedestrians—Contributory 2. as Mat- Automobiles — ter of Law. deeedent, pedestrian crossing Plaintiff’s a westbound divided ' held, highway p. mid-June, guilty at 9:35 m. of eontribu- (cid:127) tory law, proceeded as a matter of where he , across immediately passed southbound lanes after a car in front had . ,bf him in lanes nearer southbound and was hit by right westerly front fender in defendants’ lane. Presumption 3. of Due Care. Death — or Whether not there was a due care on the ,of one now deceased and for whose death action was brought considered, under the death act is not where deter- adversely plaintiff plaintiff mined 'trial court did respeet by claim way appeal not error in such of of cross guilty contributory negligence deeedent was aas matter (CL 1948, 691.581). of law § Judgment.. 4. Courts —Obiter Dicta — opinion concerning Statements and in an comments some rule of legal proposition necessarily law involved nor essential hand, are, to determination illuminating, of the ease however obiter dicta adjudication. but and lack' the force [4] [1] [2] ' 3 Am 14 Am 5 Am Jur, Jur, Appeal Jur¿ References Automobiles 446 et Courts and Error § 83. § Points § 770. seq. in Headnotes Dtjeey. Appeal Wayne; (Joseph A.), Moynihan from J. January (Docket 3, Calen 1, 1956. No. Submitted 46,416.) September Re- dar No. Decided 1956. 4, hearing denied December 1956. *2 by Margaret the Hett,
Case administratrix of es- against Mary Duffy Hett, tate Edward A. Thomas Duffy damages A. under act for the death automobile-pedes- by resulting reason of from death judgment plaintiff. trian accident. Verdict and for appeal. Defendants Reversed remanded. plain-
Daniel Smullin, O’Brien and Isaac M. for P. tiff. Dyll, Marentay, Alsburg
Erickson, Slocum, Van & for defendants. Plaintiff, J. as administratrix of the es Boyles, of her
tate deceased husband Thomas sued the Hett, defendants, under the so-called death act* the resulting death her husband from an automobile plaintiff jury, accident. The case was heard had judgment, a substantial verdict and defend and the respectively, ants, the owner and the driver, appeal. automobile involved,
Appellants plaintiff’s contend that decedent guilty contributory negligence a matter only question of law. That is the which controls plaintiff’s proofs, At decision here. and ants moved for the close of the again proofs, at the close all the the defend- ground. directed verdict on that The court decision on the reserved un- and, motions appropriate jury der the issues instructions, submitted to the
of fact as to whether defendants were guilty plaintiff and whether had es- contributory negligence. from tablished freedom * CL § 691.581 (Stat Ann "Cum Supp § 27.711). ' Beports. jury on the conclusions The verdict indicates questions. both judgment non obstante motions for Defendants’ How- also were denied. for a new trial veredicto and present appellants’ here the does not brief ever, great against question the verdict was argue weight their nor brief of the evidence does question. here for not have do We decision. plaintiff’s considering the averments facts,
In defendants’ answer declaration, the in her amended made at and admissions declaration, amended pretrial, in the record, which is statement of the must the facts at parties weighed. of both discuss The briefs
length. a north and south boulevard road is Southfield pavement in on the accident occurred Detroit. The the (southbound) westerly 2-lane the boule- Joy east and west road crosses Southfield vard. *3 point from the where the acci- 400 feet north about At on about 9:35 o’clock dent occurred Southfield. plaintiff’s night on the decedent was 18,1951, June by westerly in the lane of the boulevard struck by automobile owned one the defend- defend- southbound ants and ant, operated by the other her brother, permission consent. Dece- with the owner’s westerly later. There were died 12 hours dent for the southbound on 10-foot concrete lanes traffic light a traffic There was at the in- the boulevard. Joy the at which road and boulevard tersection by on the boule- automobiles, side, side southbound stopped light change. for the red De- vard, had westerly the car automobile was one these fendants’ 2. The other (easterly) will hereafter be de- A car, car third also southbound, noted as behind was #2. by automobile, the defendants’ driven one Tuskey, who later testified the case. When the changed, light proceeded the 3 cars south South- Duffy. Hett westerly field. defendants’ automobile in the along slowly; went lane more the car at the left of (car #2), moving rap- defendants’ automobile more idly, passed had defendants’ car and was southbound easterly plaintiff’s in the lane of it, ahead while de- gravel, grass cedent clay was on the 42-foot parkway separating the north- and southbound traf- fic lanes pro- on the boulevard. He was about to ceed west across the southbound lanes. As soon as moving which car, south closer to dece- #2 passed exposed dent, ap- had him, the defendants’ proaching plainly by automobile there to be seen plaintiff’s decedent. Decedent walked on west, be- passed by. hind the car as soon as it had How- #2 crossing pavement ever, he did succeed in right but was struck front fender of defend- ants’ automobile. Plaintiff’s claim in her amended declaration “that Thomas was struck while he right pavement was on westerly shoulder of the highway” support testimony. finds no in the alleged Plaintiff in her amended declaration westerly the decedent “at time he crossed the part [he] of Southfield road did not see defend- * * * ant car; and his that at the time the dece- dent crossed the western of Southfield road, Anthony Duffy the defendant Edward and his car Joy were still on and the road, decedent, therefore, Unfortunately plaintiff, him.” could not see testimony conclusively shows that if, even as claimed by plaintiff, Joy the defendants’ car was still on road at the time the decedent crossed the western part of Southfield, and that the defendants’ automo- Joy bile then made left turn from road south onto plaintiff’s Southfield, still decedent could, and *4 ap- should, have the seen defendants’ automobile proaching him. It would then have been on South- plain sight within field, the decedent’s for over 400 plaintiff’s if he had feet, looked. If decedent had Reports. approaching auto- the defendants’ and seen looked stopped he should, have could, he mobile, after lanes of the western Southfield started across passed have not and then would him, had car #2 to cross Southfield he continued when been struck in front of defendants’ tion, ments trial, that connec- In automobile. pretrial judge the state- who heard the circuit pre- at the made certified to the admission pleads not he did see and admits “Plaintiff any point Joy road.” car at south defendant’s pleadings, the admissions conclude We convincingly estab- in the record and the guilty plaintiff’s decedent was of contribu- lish that tory negligence proceed- he as a matter of law when westerly of the ed to lane southbound cross road front the defendants’ lanes Southfield looking to see the defendants’ automobile without car which plain approaching sight. He would attempted not have been westerly had he cross hit, diretetly (southbound) lane Southfield it. front of proof plain- to show that
In absence such contributory negli- was free from tiff’s decedent granted gence, the court have defendants’ should judgment for a verdict, for a directed for motions notwithstanding the verdict. the defendants plaintiff’s right decedent’s to a Is the properly of due care before this Court; controlling if answered, and if would be so, result? carefully charged
Inter trial court alia, negligence, contributory jury negli- on the issues proximate gence, cause, submitted to the jury fact, these issues of its consideration. As plaintiff-appellee, in her filed that, here, to contends it was brief
proper. defendants-appellants, *5 v. Duffy. 461 hereinbefore noted, motions for directed ver- judgment for non dict, veredicto, obstante and for plaintiff trial, a new claimed that the failed to had prove contributory negligence freedom from as a matter of law. contributory negli-
The show plaintiff’s gence of decedent was received without objection. defendants-appellants attempt now appeal, to raise here on for the time, first this issue: plaintiff “Issue No 2—Did the have the benefit of presumption of due care on the her dece- dent?” It is difficult to understand how defendants-
appellants question consider an answer to this any controlling importance. ap- In fact, counsel for pellants, in their do brief, not now claim error in respect; contrary, they on the concede: question upon favorably “This was also ruled appellants by the the regard defendants the trial court and plaintiff appellee and. has not claimed error in by way appeal.” thereto of cross plaintiff ques- It is true that the has not raised the cross-appealed. tion here and has not Under the cir- anything might say cumstances, this Court now of the would not trary, law as care due controlling
be decision. con- On the plaintiff’s our conclusion here that decedent guilty contributory negligence aas matter of any law controls the outcome, discussion of the merely issue of due care would obiter dicta. opinion “Statements and in an comments concern-
ing legal proposition some rule of law or not neces- sarily nor- involved essential to determination of illuminating, in hand, are, case however but adjudication.”. obiter dicta and lack of an the force Michigan Reports. (27 ALR (syllabus), People Mich Case 686). Co., 266 Gordon Oil Robinson also,
See, 65, 71. for en- trial remanded new without
Reversed costs with try judgment action, of no cause *6 appellants.' and and J.,C. Carr, Kelly, Sharpe, Dethmers, Boyles, J. concurred with
JJ.,
result).
(concurring
at
For
least
Black, J.
Schillinger
century
v.
quarter
prior
to advent
Wyman,
presumption
care
of due
331 Mich
applied,
trial courts
in our
or submitted
denied,
was
intelligent
according
rules
to the useful
exhaustively
analyzed
v.
in Gillett
were
so
Company,
(a) uncontradict- direct, The case where eyewitness testimony unimpeached or ed negligent eyewitnesses or acts omissions discloses The to this class decedent. as of the by testimony such a mat- eliminated as is, course, ter of law.
(b) where direct or circumstantial evi- or incon- The case slight presented which has but dence is clusive presumption. tendency to overcome the As testimony class, to this gave circumstantial, decedent, [*] Another no reason for was class, tending discussion considered that of to establish thereof. eases Gillett disclosing probably no evidence, because the facts direct of the or Dtjfey. jury to be according Gillett, a make, page tbe 416 of re- on under rules stated submitted port. eyewit- of an
(c) where direct case The negligent- eyewitnesses, or omis- acts as ness impeached, or contradicted, decedent, is sions by improbable shown other circumstances rendered . according to should, of case This class in evidence. appear by governed Gillett, the same rules report. page 416 of
(d) evidence where circumstantial The case usually consisting contributory negligence, of or physical by supported so clear as lead facts, is minds that to inevitable conclusion all reasonable contributorily negligent. the decedent As presumption, (a) elim- above, this inated from the case. class having reviewed its earlier Court, cases as proceeded report) (p 421 of indicated, to summarize analysis its classification as follows: may rough serve as a classifica- the above “While *7 to the tion of relative of the decisions in it will be real test each care, due seen tending to not the evidence show case is whether negligence, contributory it be direct or circumstan- unpreju- tial, is conclusive that reasonable so that could not fail to be convinced dece- diced minds room dent careless. If there is for reasonable was jury. question to the doubt, the must be submitted may jury, weighing evidence, the if, And while the in yet presumption, not the uninfluenced consider presumption, they reach the conclusion that the the negligence tending to is evidence show decedent’s not disregarded, pre- the credit and be entitled to should sumption may remaining then considered as be may necessary to establish the force so far as fact that the deceased be proper exercised care in all respects It expressly by the evidence. established abey- entirely displaced, but remained was not Reports. '464 this' reaching the jury’s pending anee preliminary the evidence the given credence he decision as in which was negligence particular point the on ' claimed.” of the reasoned decision so- I turn next to another Lundin, 236 Petersen v. called Fellows Court. duplicating a set of facts substantially 590, presents as Case, only here in we have this save what The at conclusion of the present opinion. noted said: Court the it pre- is said of .defendant “In behalf where there by law in cases allowed of care sumption de- indulged because cannot eyewitnesses
are no his estab- testimony fendant was eyewitness of Petersen. the Mr. part of care on lished want of de- limited to a view was Defendant’s in front of the was at moment he very cedent the Defendant he struck. just was automobile did of the in front of he was not see decedent before n witness evi- case barren and the automobile^ dence of. in he before got care decedent exercised what The fact decedent the of the automobile. path require in a did not danger finding place was the happening would make of care, want on contributory negligence accident the evidence no be done with refer- part, his and this can more than upon can the ence care re- negligence. of defendant’s or not as he Mr. Petersen exercised quired approached point at such path automobile In defendant did not see him. the absence of Mr. testimony showing the actions of Petersen as he automobile, path oncoming approached care permitted the law due to the carry jury. his issue This being not in error true, instructing court was Mr. Petersen saw the no more than the jury automobile. Such instruction was they should assume *8 of the that Mr. application Petersen exercising due was care. Duffy. ruling in “The asked behalf of defendant would, pedestrian guilty -negligence a in make effect, as a get matter of law if he so conducted himself toas path misty' of an into the night automobile. On a dark, lights away the distance automobile are deceptive, speed somewhat also of an auto- get path do in mobile. Persons of automobiles exercising even while of law due care. There is no rule requiring pedestrian eyes to rivet his on an approaching automobile. He should look but if, having appears may pro- looked, it cross, safe to he solely by ceed, and his care is not to be determined the fact he was struck and was not at that second looking at the automobile.” light foregoing sign
In I am unable to opinion proposed in this case Mr. Justice Boyles. Duffy, He brands defendant Edward A. and the wit- Tuskey, “eyewitnesses ness accident.” He necessarily does so as matter of law, on favorable- testimony. jury to-defendant view of the below justified amply finding, was from defendant Ed- Duffy’s A. contradictory ward admissions and state- that he prior ments, to did not see the decedent at all impact Tuskey, as to and, the witness was similar- justified ly finding tending nothing that he saw presence contributory negli- indicate or absence of gence. Tuskey Boyles
Mr. Justice relates saw the “through just decedent his windshield before he was' Tuskey hit.” The fact is whatever saw of prior impact through decedent shield his own wind- plus rear window of defendants’ car right-front windshield window of the latter. Tuskey’s if we Even were consider light suggest favorable to the defendants —and I way through be the other around—all should he saw through the windshield and the defendants’ car with *9 Reports. prior respect decedent or did not to what the did do fleeting impact of was a view the decedent’s head split prior impact. and I do in shoulders instant Tuskey upon testimony of not look either “eyewitness” testimony or of the defendant driver as if it and, even so it come within viewed, should scope (b) of division above. way gone long years This in has Court recent toward of due final destruction 8chillinger care. In went far to manufac- we so sponte “eyewitness” pure ture sua out of rumor hearsay. Upon tragic novelty, made into that Schil- linger presump- until it is retired has eliminated the pedestrian tion of due where the Court chooses to from all care death cases
presume, or infer from hearsay, surviving driver “saw decedent at may all before the accident.” The driver have seen nothing evidentiary prove tending or value dis- prove contributory negligence of him whose mouth naught is closed in death. The Court knows of that pre- simply without the of such driver. It may something sumes and, that the driver have seen ipse on presump- that dixit, homemade the time-tried tion of due care is ousted from the as a case matter crept of law. A new has thus without Michigan pedestrian honors into presump- law—a eyewitness testimony tion of existence of credible negligent pre- or acts omissions the decedent—a sumption presumption, that annihilates another care, due aas matter of law. Uncommon law like only Michigan will this be found and I note that spawn it did in our State until after the Court through passed praiseful Cooley into Fellows history. imagine, having again We can well scanned worthy opinions day, great their what these say, they yet scholars would were here, of an at- tempt “eyewitness” to make an of one who has never taken may the oath of a witness, be said with Duffy. .1956] misunder the error of picking np conviction May oft, cr remark Collar (as stood into in their grown presence never have would 376) - form. Schillinger’s monstrous Case, proof is the sole Schillinger Here, decisions past which fact-premise to favor according arrayed Court were divided 161): (p disfavor *10 offi- told an after accident defendant “Shortly cer she was that she had not seen decedent until testi- plaintiff A witness for practically upon him. that from he that defend- fied what he learned knew eyewit- ant saw the accident. There no other were nesses.” statement hearsay inquire, is fair
(It an admis- admissible as offered or rendered being testi- may witness value a sion, evidentiary how with that It would seem an event. that another “saw” fy could mortal who only other would be the living such any- what if sight fact his own to the of testify it revealed.) thing Mr. Justice paragraph target
I turn now to the in one there, It is said 9th. opinion —the Boyles’ of due care sentence, sweeping all the circumstances.” of the case “under out is Thomas, 345 Mich Cary cases, including Nineteen proffered analysis without support are cited 616,* rule collectively applicable as representation or thereof. conclusion of expansive of writing
The practice over the strewing indiscriminate followed law, lives than recognize tation from that Brothers, 19), during because it * The approving and Gillett, majority opinion I will not those of its enemies. note Heckler v. like a dispose with deferential go possibly unnoticed is persistent of it. away right, Laing, Its tliis and it stray 300 Mich above classified ink-fresh humor that cat they may citation of Gillett. sooner well annoyance Cary (cited prove or later must either 4-footed rule is en Case quotation above with the adopts to have my present It includes is clear more quo Michigan Reports. only, page references is known to most of numerous “shotgun pursues It citation.” the- trial counsel whimsey impression potent will be made if a crowded into the muzzle of multitude of citations is special with or without attention to fit and the brief weight when detonation course, thereof. Of dissenting will, wise, if check over, ballistician pellets penetrable each of the and to determine worth effect thereof. (Elrich Schwaderer,
The first the 19 251 Mich 33) during is that a motorist whose violation cost, nighttime distance” “assured clear rule huge him life. He unable to clear a his was concrete path personal rep- mixer from the of his car and his properly resentative ruled out of court cited strength (d) {Cary) of Gillett’s rule above. last highway is not even a or traffic It in- death case. proper jury volved instruction on contributory negligence the issue of of one who died gas private of lethal in a home, and case admit- tedly presented fact an issue of on that score. remaining simply say, to the will
As
cases I
Schillinger
already
after deduction
considered
*11
(Marchlewicz Morrisette,
and
271,
its brood
v.
Mich
Hoag Hyzy,
163),
Mich
that
v.
each has
pos
carefully
that no one
been
examined and
with
exception
Buchel
273 Mich
Williams,
sible
and
v.
Dahlquist,
presents
v.
135*
even
Swartz
counterpart
here,
remote
have
of the situation we
say,
that is to
the situation where
the absence of
genuine eyewitnesses
representatives
of a de
pedestrian actually
call the defendant mo
do
ceased
do
to the witness stand and
succeed
estab
torist
lishing, by
uncertain
the certain or
of the-
was held
ested
right up
[*]
In Súchel
eyewitness
for the
impact.
testified
jury
in Smarts
decedent’s
of decedent’s
continued acts of
unimpeached
and disinter-
negligence-
Dtjeey.
latter, either
he did not see the decedent at all
impact
prior to
if
or,
he did see
him,
his view
limited to
was
the same extent as
dealt with in
was
Lundin,
Petersen v.
I will up conclude one of the aforesaid (Molitor 19 cases 261) pre- v. Burns, 318 Mich for sentment as follows: standing
In the Molitor Case decedent on and edge highway pavement angle near of the within the opened police left made door of a State car. stopped by police He as motorist been had stopped immediately traffic violation. His car was police parked ahead of the car. The latter was highway adjacent right edge the shoulder of the of pavement. Its left wheels were between 12 and 22 edge pavement. from the inches Defendant’s approached police truck from the rear of the car and standing posi- struck he decedent while was in such *12 Michigan Reports. facing the in the tion, officerswho were car. The offi- hearing approach- defendant’s track cers testified (the presumed also) ing court decedent did and to any pay the fact that decedent did not to it attention looking talking but continued and their direction in. (into car) their until hit the truck. The Court alleged held that decedent’s question proceeded jury say was a and (p 265): this presented “Under circumstances in this case contributory neg the ligence of freedom from Railway Fairchild v. Co., does exist. 260.” unimpeaehed eyewitnesses Here, Molitor, testi- everything fied to the decedent did or did not do' prior impact. Naturally Gillett under the' place of due had no care in the case. Molitor
Since is one of the aforesaid 19 cases, Fairchild, since cites and relies on we should of right fjnd examine the latter. Here is what we report: page many holding presump- “There are cases exercising apply tion of due care does not where eyewitnesses there are to the accident. if But, we preserve apply underlying are to the reason presumption, language we must hold that the used in opinions literally such cannot be too construed, ‘eyewitnesses’ to the accident must be held to knowledge mean those who have of some fact or cir- light upon cumstance which throws things or not the whether deceased did those which
under circumstances constituted the exercise of due care.” quotation my commentary
This last final on the opinion of Mr. Justice Boyles. I would return to the strength rule of Gillett and Petersen and, on thereof, respectfully reasoning dissent from the set forth in Boyles’ opinion. Mr. Justice Both were written and *13 Duffy. unanimously adopted by respected members opinions pride- Bench whose lucid were and still are fully pointed by older members of the bar, good disregard yet no reason for thereof has as been reports. written into our n having The of due care been consid- ered on both sides of the conference I turn table, record facts on which it must be said, as a matter of plaintiff law, failed to sustain the burden of disproof contributory negligence. alleged It is in by plainly the declaration, admitted answer, and pretrial echoed in unmodified statement that de- engaged crossing cedent, then in Southfield from any east to did west, not see the defendants’ car at progressed through time after it the intersection of Joy Joy road. road is at least 400 feet from the point impact. pedestrian engaged crossing The in busy highway divided-lane whose failure look- obviously out continues such extent is and as a guilty causally-connected matter gence. negli- of law pleadings pretrial statement establish the respecting fact and conclusion of law tributory negligence exactly decedent’s con- unimpeaehed
as if an eyewitness and disinterested had testified to dece- passage separate dent’s continued across the south- turning bound traffic lane without head other only evidence of observation in direction from danger expectable. which traffic The case thus (a) fits Gillett’s division above. ground
On negli- that the decedent’s gence pretrial by pleadings established the aforesaid by I
statement, concur the result reached Boyles. Mr. Justice (Added August 1956): The fore- Addenda
going dissent was submitted for consideration of May other members of the Court on 29th. Since then Justices Smith and Dethmers have written in the Michigan Reports. opinion Boyles his from has deleted and Justice
case “target paragraph” with its the above-mentioned treatment and included cited cases supple- Duffy. Tuskey This given witnesses explain treatment reference to and will ment, then, longer appears foregoing no of that which dissent Boyles’ opinion reported Mr. Justice in the signature. over given concurrence reiterate, above, I reasons without new trial. reversal *14 (concurring result). It is Jamie- Smith, J. (2d ed), Law Brown’s Automobile son and the state into which this we best find described important authors, The fallen. branch the law has p 319) (section 110, note citation, with abundant pre- the witnesses, “in the where there are no cases declaring may upon entirely sumption be relied may only negligent; used to not be the decedent may jury; presumption the case to the or the send upon there at all. In the where not relied cases an more confused are witnesses we have even situa- ap- to case, tion.” the law from case Thus wavers litigants’ expenses justice peals multiply, mount, is beget meaningless uncertain, distinctions differ- even meritorious, entiations less all miserable progeny compounded. of confusion example presents good how
The situation opinion, unqualified taken out of in an statement grows dictum, which, into a careless with context, repetition, canonized into a becomes uncritical “rule” law. presumed, early clear. It ab- law was
The
contrary,
to the
that a decedent
of evidence
sence
negli-
was
and that he
free from
with due care
acted
presumption
gence.
or not’ the
results
Whether
judicial
taking
notice of the instinct of self-
from our
preservation
(see Wigmore,
[3d ed],
Evidence
Dtjeey.
2510) unimportant.
preceptor
§
We need ho
to ad-
being
pru-
that a
vise us
normal human
with
reacts
presence
peril.
presumption,
dence in the
may
by contrary
be rebutted
direct
course,
or
it must
evidence,
physical.
circumstantial,
verbal
But evidence
guess,
speculation.
not
be,
not
all
We made
early
Mynning Detroit,
this clear in
case of
Lansing
(8 Am
& Northern
Co.,
R.
Rep 804),
St
wherein we said:
person
“The
of law is that the
killed
crossing
stop,
at a
did
listen,
look and
will
prevail
testimony
in the absence of direct
on the sub-
ject. But where there is affirmative,
direct,
person injured
creditable
upon
the
went
stopping
the track without
listen,
look and
displaced.”
is rebutted and
passage
years,
with
come,
We
however,
Huelster,
the case of Foote v.
Here,
So eyewitnesses to the In there were 252. this case accompanying driver his accident, the defendant they evidentiary may have value wife. Whatever secret, remain must forever observed, however, follows Yet the held as for neither testified. Court 261, 262): (pp concerns principal in this case “The of au- Citation of decedent. principle unnecessary thority to establish is eyewitnesses death, the to the are no
where there presume in the exercise law that decedent will eyewitnesses the ordinary there are but where care, van- of decedent on the of due care ishes. said: Huelster, we “In Foote v. “ eyewitness an accident an there is Where upon pre- upon proof not
issue of due care rests eyewitness sumption. if the is even This so party.’ adverse eyewitness my opinion the defendant was “In presumed what was see to the accident. He was there to seen.” be complete represents distortion of
The above only may principle by rebutted practical matter, as a and, kind of evidence some destroys the accident which does it, for rare is eyewitnesses, presence of at least involve the injured person. alleged and the tort-feasor might (We im- would be the more add that we argument makeweight pressed by in Peck the Court’s walking Hampel, supra, diago- that decedent was v. nally may [whatever- the intersection across *16 Durey. proximate cause] have had to do with were it not eyewitness the recent citation of this case on point coupled Ambs, in Black v. 644, excerpt, speaks therein with the Casé Foote which merely accident.”) eyewitness “an to an thought,
It should he that however, such cases stand alone. If this were however true, indefensible might the result there at be, would, least, be a cer tainty authority opposite prin to the matter. But in ciple abounds. dissent See J., McAllister, Hampel, supra; Peck Presumption The Finucan, Michigan, of Due Care 33 MSBJ, March, 1954, p by and 28; cases cited and referred to Mr. Justice Black herein. developed “authority,”
There have thus lines only' on minute factual “reconcilable” differences. opposing appear by The side side in eases in direct the re- ports, actually yet standing conflict, each again authority Again of some kind. this issue against background a arises, dissent, of confusion, uncertainty. pedestrian In case we who have was struck by public highway. near automobile on or nothing evidentiary to the witnesses accident saw typical pre- value. This is the situation in which the sumption agree, upon arises. I that however, pleadings, pretrial facts, the statement, presumption has been rebutted and that decedent guilty aas matter agree Boyles law. But cannot with Mr. Justice. I “any discussion of issue of merely due care would he obiter dicta,” or with the Chief the Justice “the circumstances under which indulged” apparently should unnecessary decision the case before us. point
I make this because much of the confusion supra, described Jamieson Brown, is trace- directly misconception implicit able to the in.the Reports. *17 476 346,'Michigan opinion not in an dictum is a statement above. For is necessary classic statement A tbe decision. to Carroll, v. Lessee Curtis, J., Carroll of of 936); (the (14 US) it (57 L “if ed 286, How might upon) point have been matter commented any right affecting way without either decided prin according question, brought to the then, into ques ciples opinion law, the common on such of apply Let the test. Could tion not a us is decision.” presumption applicability have of due care the the of plaintiff’s way affecting either without been decided recovery? right question supplies own an The its of case) (in no-eyewitness reach cannot swer. We our contributory negligence part of on the decision plaintiff giving the exhaustive of without most the (See presumption of the due care. consideration aspects prob the of both the careful discussion Co., lem in Gillett v. United Traction 410.) presumption If, think the however, we legal care as and doctrine, due one the issue .of (as contributory law) negligence an a matter as entirely former, this other to the other, unrelated, so any discussion the former is mere obiter dic tum when our ob latter, then, decision turns viously respect holdings problem our with to (which single indivisible) in truth will, and as point present out, Jamieson Brown a “confused situation.” presumption applicability was dis-
Here upon argued briefed and court, in the trial cussed appeal, respect a deci- with it we must reach we hold that there was sion can before reject, I its dis- then, a matter of law. as ais mere obiter. The missal respect parcel of must decide. the issue we With make clarified. law should be We should profession' people, in- to our lest -it clear to the through justice perpetuation error, done .be HETT V: DlJEEY. presence eyewitnesses mere to an acci- enough dent is care. to rebut of due question always to be asked, and an- evidentiary they swered, is, What of value did see? eyewitnesses destroy presumption, Such must, present “affirmative, and' direct, creditable testi- mony” (Mynning Lansing v. Detroit, Northern & R. supra) showing negligence. Co., decedent’s takeWe testimony, not attendance.
Subject to the I concur in above, with reversal, appellants. costs to
Black, J., concurred with Smith, J. *18 (concurring result).
Dethmers, C. J. State opinion concerning in an rule of ments however some law, illuminating, necessary not' are, when People of case, decision but Case, dicta. (27 686);
Mich 379 ALR 266 Co., Robinson v. Gordon Oil Through opinions Mich 65. in. several this say, participating case members of Court this (cid:127) - - unanimously; plaintiff’sadmis that of- reason pleadings pretrial, plain in the and at that sions, failed to tiff’s decedent maintain a reasonable and proper guilty lookout, he must held to have been contributory negligence of as a matter of law; and, accordingly, judgment plaintiff for is below reversed entry judgment and the case remanded for of no agree. cause for action in favor of defendants. I epitomizes accepted by reasoning This all the Jus controlling tices for as decision reversal. It en compasses necessary all that is to that decision. jury
The court not instruct on below did subject presumption of freedom from contribu- plaintiff’s tory applied decedent; plaintiff complain say- account, does not here that ing, in her that that is a which is not brief, naturally enough, before Court for and, review; Reports. reversal and obtain here defendants, who seek plaintiff, approve court’s the lower judgment for plaintiff’s was, decedent instruct failure to might to the benefit be, entitled circumstances under presumption. consideration How could of such be be decedent should under which a the circumstances a.-proper presumed lookout to havé maintained necessary pertinent in this case in to decision .or flatly plaintiff fact, that, as matter admits which her decedent did Consequently, I reserve I hot do so concerning my expression correctness views subject previous this Court on decisions of of and the circumstances n 'under which necessary indulged where case should be - result., controlling of decision.and n trial, costs without -new with reversal; I concur in - to defendants. JJ., concurred with Dethmers, Sharpe Kelly, J,C. in'the of this took no decision J., . Edwards; case.