*1 1967] City ok Detroit. 405 Jaxon v. DETROIT, DEPARTMENT v. CITY OF
JAXON RAILWAYS. OF STREET op the Court. Decision Passenger. Alighting Injuries to 1.Carriers — plaintiffs, husband and court for Judgments entered trial alighted arising injuries received as she wife, from latter reversing affirmed, Court of ordered from defendant’s bus are Appeals. Separate Opinion. J.
Brennan, Discharge Passengers. 2. Carriers — of obligated conveyance bring so as a its to carrier is to A discharge reasonably place-, passengers its in a to safe discharged a place at which whether generally question place under the circumstances of safe fact for Passenger Negligence—Discharge Place. 3. —Safe Same — reasonably acting carrier’s bus driver Whether defendant stopping his bus prudent under man the circumstances curb, plaintiff passenger so 3 or 4 feet expecta- descending exit in the while the rear stairs she fell [2, 3, [1] [4] [7] [9, 12], [10, [5, Liability Refreshment Admissibility 6, writings. 14 while 14 29 Am Jur 13] 8] Am Am Jur responsibility 4 Am Jur ALR 53 Am 8 Am Jur alighting 14 Jur Am Jur References 163, 2d, 2d, motorbus Jur, 2d, 2d, Carriers 982§ Carriers ALR 69 Evidence recollection et Trial 463 Appeal 2d, for 2d, ALR2d 1148. 19, vehicle. Carriers 984. carrier Automobiles and injury § for Points § 82 ALR2d 473. 991. public § 877. et Error § 9 ALR2d seq. seq. passenger injured person officer or uso of in Headnotes 397§ 938! or Highway et memoranda employee seq., damage ' 1 Traffic through fall 'Or. other property. cause § 959. ir 379 Mío tion that the curb would be held, question underneath them jury, stopped where the driver Ms bus where of fact mAsjudgment he did aas result the actions of traffic stop. near the *2 Contributory Negligence Alighting Passenger. 4. Same — — plaintiff passenger, Whether alighting who while exit fell from expected stairs bus because she the curb be under the of rear exit when stairs in away, it was 3 or 4 fact feet negligence, question held, a the of of fact for finding ought by whose appellate judges not to be disturbed opportunity who have not had the witnesses, to hear the ob- mannerisms, serve their testimony. and evaluate their Reports 5. Automobiles —Vehicle Code —Accident —Admissibil- ity. provision reports required Vehicle code that under the code shall any not be in action, available use court does not for refer by report police superiors, only a to his but re- officer ports by persons made under the statute who are drivers of charge garages repair (CLS vehicles or in shops §257.624). Reports Admissibility. 6. Same —Vehicle Code —Accident — by passenger injured alighting Statement made in bus to investigated police who the accident and recorded the officer report privileged in statement his accident was not under the code, motor vehicle and not excludable as evidence therefore (CLS 1961, §257.624). on that account Writing—Past 7. Evidence — Recollection Recorded —Eoundation. writing objectionable hearsay, A otherwise to be admitted past recorded, proper evidence as a a recollection must have showing (a) which a the witness consists that foundation of: present showing facts, (b) has that the no recollection of memory upon witness’ is not to the docu- refreshed reference original ment, (c) showing that the document is an memo- personal observation, (d) a randum made the witness from showing prepared by that con- document was the witness temporaneously recording with event and was an accurate occurrence, (e) showing that the substance proffered writing is otherwise admissible. Report Admissibility. 8. Same —Police — policeman accident, Written about evidence offered showing policeman who it had no made independent except had he recollection the accident City ok Detroit. Jaxon and, scene, had assisted taken her to the been called investigation hospital, made the usual and had to the report, proper held, not with prepared usual offered testimony upon the was no circum- when there foundation report was made. time at which the or the stances Appeal-— Report Admissibility—Review — 9. Same —Police Separate Record. Admissibility police report in evidence as a written offered upon appeal reviewed past cannot be recorded recollection writing separate proffered record case where no made. Statute—Reference—Jury Instruction. 10. Trial — opening by plaintiff’s counsel in his state- a statute Reference error, where the not constitute ment did reference adopted by instruction to the the court its Statute—-Reference—Jury Instruction. 11. Same — regulating by plaintiff’s statute maximum counsel to Reference curb, in suit vehicle distance injuries against sustained carrier defendant *3 stopped alighting a bus which was while when she from fell specified distance the curb than the maximum farther in from court, referring stafaite, error, parking held, not where the not plaintiff’s claims, it that the court was made clear to specifically anything therein, adopting and contained further apply did not statute instructed the 1961, 257.675). (GLS the case § Opinion.
Separate Kavanagh Souris, T. M. and. JJ. Appeal. Report Admissibility—Review — on
12. Evidence —Police erroneously report police a certain claim that Defendant’s appeal should not be considered excluded evidence from appellate appear in the record where does it before formally as an or even marked court offered exhibit. Opinion. Dissenting Kelly J., JJ. O’Hara, C. and Dethmers, Passenger. Discharge 13.Carriers — by Stopping bus driver carrier’s bus defendant curb is not actionable 3 or 4 feet from be require it would as a matter because law, unreasonable-to Mich 405. largest metropolises bring the nation’s driver in one a bus spot busy rest at the same in a vehicle to intersection every stops there. time he Appeals, Appeal Division 1; Court J. H. Fitzgerald P. and Quinn, JJ., Grillis, J., revers- (James Wayne, N.), ing May Canham J. Submitted (Calendar 1967. No. Docket Nos. 7, 51,552, 3, July 51,553.) 21, Decided App 3 Micb reversed. by against City
Declaration Della Jaxon of De- Department Railways, municipal troit, Street damages corporation, resulting personal for injuries alighting while from a bus. by against Derivative action Albert Jaxon the same together defendant. were heard Cases and resulted judgments plaintiffs. in verdicts and for Defendant appealed Appeals Court which reversed and entry judgment remanded for for defendant not- withstanding plaintiffs. the verdicts for Plaintiffs appeal. Judgments Appeals entered Court of judgments are reversed and entered trial court are affirmed.
Goodman, Robb, Eden, Millender, Goodman & (George Bedrosian J. Bedrosian and William H. counsel), plaintiffs. Goodman, of Manuel Zechman and David Grainer, for defend ant. *4 appeal granted J. This leave Brennan, Appeals
from a reversing decision of the Court of plaintiffs, the circuit court.1 Husband and wife, 1 City Detroit, Jaxon D.S.R., v. App 3 Mich Mich 731.— Reporter. City of Detroit. Jaxon the Court. at the hands of in the verdicts recovered judge Wayne the trial court and entered circuit judgment judgments thereon. Motions notwith- standing in for a new trial each case the verdicts or were denied. May Della was a 21, 1961,
On Jaxon on a D.S.ft. bus northbound on Woodward avenue. injured process fell and was while in She getting stop off at the bus the bus on the Woodward overpass avenue at Davison avenue. The áccident 12:30 in occurred about clear, It was afternoon. sunny day. riding Mrs. Jaxon had been years, D.S.R. buses on this same line for 17 about testimony once or twice a It week. was her customarily stopped enough the bus close to the stepping curb so that in off of the bus she could step directly testimony onto the curb. There was supervisor from a of the D.8.R. that D.S.R. drivers go pos- were instructed to as close to the curb as passengers. sible day On the question, on bus which the Della Jaxori, riding brought stop was bus to a at the Davison way in such a that the rear door was 3 or 4 feet from the curb. Mrs. Jaxon testified that passengers there were other disembarking the bus stepped front of her and that as she out of the rear door she was unable to see that not at bus was the curb reason of these other passengers. apparently expected step She onto curb, but alas there was no curb underfoot and atumbling. went Jaxon fell Mrs. victim Fetridge’s law.2 2 “Fetridge’s engineer law takes its name from a radio named Claude Fetridge, employ Broadcasting once tke Company. tke National Fetridge, 1936, thought Mr. up This back broadcasting the idea of flight the in of the famous Capistrano swallows from Mission San Juan known, Southern California. As is depart well the swallows year 23d, the return to the mission on eaeh Bay, mission October which is St. John’s 19th, Joseph’s Bay. March St. Claude *5 Mici-i 379
410 the Court. present for themselves determination issues Four necessary for each the facts will cause and this (1) therewith: in connection Whether discussed be D.S.K,. any negligence from a mat- was free as (2) Della law; Jaxon, ter of Whether contributory negligence a matter of as was of reversibly (3) the court erred law; Whether police report permit refusing a to be read in to reversibly (4) erred the court evidence'; Whether making reference to a statute. was free one, Issue number whether D.S.K. have a matter of law. There predicated upon the failure a been number cases stop bring a so that of a bus driver to the bus to passengers alight general onto the curb.3 The can bring obligated rule that a his con- is carrier is veyance passengers to a so as to its reasonably place. general, in a safe In whether place given discharged at which a place was or not a safe under circumstances question In of fact for the the instant Gumperson’s case, the bus driver was victim law.4
Fetridge eager wings to transport anxiously moult, A Short Koll Company), pp 7, 8. A did a Del Vecchio v. 881) Boyd 706); guage 97 Ohio .(1947), [3] 98) ; them, considerable Hole Womack Not the swallows out of sheer ; Transportation Company (1931), Fordyce flock lend states that [135] App Greco v. to be confused with History conceived the had taken their v. its crew to the mission. And with the entire nation NJL 280 v. [78] sort of v. passerine Haflin City (117 effort and White Public Service Interstate important soul-stirring, mystical departing Fingers, (1965), immortality NE2d (51 Bus idea Star Edmonds birds of the departure A2d Company (1947), expense things Bus H. Allen Smith [75] orneriness swallows Fetridge’s Law, 1) ; broadcasting [55] NM 522 Lines, to a man named Claude (1964), Mills v. which are Ohio to set day family 108 NJL 296 Inc. or Op (407 64 Wash 2d 94 ahead of schedule. Thus October 23d. NBC went event, City because Transportation Company (1931), 310). the whirr and up 135 NJL 339 (1963, Little, supposed hirundinidae, P2d which its it was discovered Cleveland the devil had 304 Pa 106 362); equipment (156 simple Fetridge.” happen do Malzer flutter of (390 Brown & A eager (50 waiting (1954), 639); (155 A2d P2d lan got v. City Detroit. Jaxon Opinion op the Court. approaching the intersection that in It seems of' driver de- Woodward avenue Davison, prevented approaching- fendant’s bus stop in the curb lane reason of bus several right-hand stopped in or curb lane for vehicles *6 apparent purpose turning- right onto the Acting- eastbound Davison service drive. the the probability that all welcome of the vehicles proposed right lane to turn onto the Davison curb service proceeded north drive, bus driver Upon having lane. him- second thus committed contrary probability self, this welcome asserted, and at least one of the automobiles which apparently waiting right had been proceeded in line to turn directly alongside
instead north thereupon required The bus. driver was to slow permit the bus and traffic to clear in the approaching stop. curb lane before the bus This approaching series events resulted in the bus angle although at curb somewhat of an so that, quite the front of the bus was the rear of the bus, and close to the curb, particularly exit, rear was 3 or 4 feet from the curb. It to determine whether the defendant’s bus driver was acting premises reasonably prudent in the as a man under the same or similar circumstances. itWhile guilty negli- cannot that be said the driver was gence as a matter of law, neither can it be said negligence that he was free from a as matter of question law. It was a of fact.
Issue number two, whether Della guilty Jaxon, a as matter of law. Mrs. Jaxon testified that she was aware that the happen, especially not has been people looking, Gumperson’s when are Law contradictory probability defined: The of a welcome will assert itself eventuality likely whenever such an to be most frustrat- ing. A History Short Fingers, (1963, Little, H. Allen Smith & Company), p Brown 4-12 379 Mich 4:05. of the Court. stop, bad come ber that not aware sbe was
bus that tbe feet, bus was out from 3 or curb tbe alight- ber view out of door other tbe was blocked ing only passengers, looking that in sbe down saw pant leg tbe of a man other ber, in front tbe passengers alighted difficulty, that sbe without expected step onto ber ex- tbe Whether curb. pectations were reasonable, whether ber view was person reasonably prudent obstructed, whether a in tbe same or similar circumstances have would waited in tbe doorwell until sbe could make more stepping careful observation all before down were matters for tbe It determined as a matter of fact that tbe was not contrib- utory negligence and factual determination ought by appellate judges not to be disturbed who opportunity have been denied tbe to bear the wit- nesses, observe their mannerisms, evaluate their testimony.
Issue three, number tbe court whether erred re versibly refusing police report in to admit tbe in police evidence. A officer called was as a witness. independent He bad no recollection of tbe accident except say to that be bad been called to tbe scene, bad assisted tbe and taken ber to tbe hospital, investigation and made bad tbe usual and prepared report. Apparently tbe usual defense get counsel wanted to before tbe a statement which tbe bad to made tbe officer, which report. statement was recorded in bis accident a Such statement would not have been unavailable by evidence as reason of tbe statute.5 Tbe stat utory exemption only reports required refers to chapter.” only persons required under “this Tbe use statistical CLS “The in any reports information court § 257.624 action, required by (Stat as to the but Ann it shall 1960 Rev chapter number be for § shall not be the 9.2324). purpose cause of accidents.” available furnishing City Jaxon Detroit. Opinion op the Court. reports make hicles and under the are ve- statute drivers
persons repair charge garages shops. any report The does not statute refer police superiors. purpose a officerto The prior exempting section of the the statute is shield challenge sections of the law from constitutional ground they require the self-incrimination.6 report although But in this case was involved privileged it under the was not admis- statute, past qualify a recollection a sible as recorded. To writing objectionable hearsay otherwise be past admitted a as a recorded, evidence recollection proper must foundation be That laid. foundation (a) following: showing should consist in the present the witness has no recollection of facts, (b) showing memory that the re- witness’ is not upon (c) reference to the a show- document, freshed ing original is an that the document memorandum (d) personal made observation, witness showing prepared by that the document was contemporaneously with the witness event recording (e) an accurate the occurrence and, proffered showing writing that the substance of the is otherwise admissible. Defendant’s offer police report testimony any entire without circumstances or the time at which Finally, separate made was insufficient. since no proffered writing record of no made, there is way upon appeal. for it to be reviewed reversibly Issue whether the four, court erred its reference to a certain statute. In the original complaint, plaintiff alleged that' the de- failing fendant driver was *8 the bus within the maximum distance from by required repeated the as statute.7 Plaintiff curb 6 People [7] CLS Thompson, § 257.675 [259] (Stat Mich Ann 1960 Rev 109, at page § 124. 9.2375). Mich ti-ie Court. allegation pretrial Plaintiff’s in her statement. this during jury pretrial voir read to the statement was jurors acquaint prospective with clire examination to objection plaintiff’s theory of the case. No by at time. Plaintiff’s made defendant’s counsel again opening referred counsel his statement objected whereupon the statute counsel defense parking ground statute, the statute legislative to the flow intent was related that the persons safety getting of traffic rather than and that therefore statute vehicles, in and out of pass not here was not relevant this case. We do validity argument. The court took of that objection no further ref- under advisement and the court in its erence to the was made until statute again plaintiff’s pretrial jury instruction to the read theory plaintiff’s setting of the at forth statement Finally, including statutory reference. case, specif- request the court of defendant’s counsel, ically jury follows: instructed the charge my There is—I assume that “The Court. ruling earlier in that —the court made indicated allegation plaintiffs, proceeding that the at the outset of this of that the DSP was trial, violating statute in a certain dis- State ques- apply here. tance tion the curb does The of whether or not the driver was reason- bus prudent person able circum- under like or similar you stances is what are to determine.” This statement the court was sufficient to an- objection. swer defendant’s Nowhere did the court apply. tell the that the statute did Mere refer- by plaintiff’s open- ence to the statute counsel ing statement did not constitute error where not adopted by the court in its instruction to the reading pretrial The statements submitted where with particularly prefaced parties, such words *9 City ok Jaxon Detroit. the Court. “plaintiffs contend,” contends,” “defendant as “plaintiffs’ not version,” version,” “defendant’s does anything adopting an contained there- constitute in, trial pre- reading A of the whether of fact or of law. pref- case statements the court “I this time the have at words, aced with these you respective again obligation give versions the you plaintiff and so will be defendant, the the of aware presented I now theories to me. will the excerpts give you.” reading them After the very pretrial “That said, the the court statements, respective position plaintiffs briefly the is the charge an then did not include This the defendant.” adoption statute which court of inapplicable, charge and the tak- claims defendant reversibly error. was not as whole en Appeals foregoing reasons, Court For the judgments of the trial en- court reversed and is tered jury’s are costs affirmed,with verdicts appellants plaintiffs, in this Court. to the concurred result with JJ., and Adams, Black J. Brennan, (concurring). Mr. Justice J. Brennan Souris, police report opinion certain
discusses erroneously excluded from claims was defendant evidence. Court it does From the record before this formally appear was offered an such circum even marked as exhibit. Under argument appeal with refer stances, defendant’s rejected admissibility should out ence to be its hand.
Subject foregoing, I concur in Justice Bren- to the appeal disposition for the of the reasons nan’s opinion. stated in his T, M, J. J., concurred Kavanagh, with Souris, 379 Mich (dissenting). uninstrueted in J. I am O’Hara, Fetridge’s G-umperson’s law and law. Insofar as accept law is I concerned statement Appeals of the Court of that:* only “The record here discloses the unsafe feature place place was that the was not * * * *10 expected where Mrs. Jaxon it to be. We hold as a matter of law that no actionable is shown on this record.” require
It would be somewhat unreasonable to largest metropolises bus driver in one of the nation’s bring spot busy his vehicle to at rest time he the same in a every stops intersection there.
I Appeals vote to affirm the order of the Court of opinion. for the reasons set forth in its Dethmers, C. J., and Kelly, J., concurred with J. O’Hara, App 722,
* 3Mich