326 Mich. 108 | Mich. | 1949
Our decision on a former appeal in this case is reported in 321 Mich 225. With the exception of some inconsequential matters, the material facts detailed in our former opinion are the same as now before us, and need not be herein repeated except where particularly pertinent to the questions presented on the present appeal. As on the first trial, so on the second trial by jury the verdict was in favor of defendants. Plaintiff has appealed, and asserts there was prejudicial error in the following particulars:
(1) Ernest E. Huffmaster, the defendant who was driving the automobile involved in the accident herein, was permitted over objection to testify that he was in the military service 39 months. It is common and permissible practice in disclosing the character or personality of a witness to inquire on direct examination his business or profession, such as merchant, manufacturer, physician or clergyman; and on the other hand by cross-examination the ill repute of a witness may be shown. This claim of prejudicial error is without merit.
(2) In his argument before the jury defendants’ counsel said: “You know a motorcycle is dodging here and dodging there just like a rabbit.” . Plaintiff was riding as a passenger on the rear of a motorcycle and defendants’ main contention was that in making a turn to the north the driver of the eastbound motorcycle suddenly and negligently drove in front of defendants’ westbound auto, and thereby caused the accident. Witnesses .testified-that the driver of the motorcycle “turned in front of. us, (when) we (occupants of automobile).' were about half way across the intersection,” and “he made a quite sharp turn.” Plaintiff’s' attorney, .did not move' to strike or request the court to caution the jury. He merely interposed.the^rémark-rcfiT-he,re is.no 'testimony before this court of any dodging -by "-this.- motorcydfe.”
(3) Plaintiff asserts error in the following portion of the.charge to the jury:
“In discussing proximate cause, I want to state that it has been repeatedly recognized that there may be more'than one proximate cause in an accident of this character, and in considering proximate cause, I wish to say that there must be a causal connection between the negligent act of the party to be charged with the injury and it is sufficient if thé negligence of the party to lie charged with the injury was the original moving cause which set in motion the chain of circumstances leading up to the injury and which is (in) natural continuous sequence, unbroken by any new independent or intervening cause, produced the injury. So in considering whether or not, any one of the parties is guilty of negligence, and whether or not the negligence of any of the parties is the proximate cause of the injury, that will be your yardstick. That will apply to the defendant, Ernest Huffmaster, the driver of the motorcycle, Bryant, and the plaintiff herself, Loraine White. In considering proximate cause during your deliberations, you may consider the defendant’s claim and that is that the driver of the motorcycle was negligent, and his negligence was the sole, as distinguished from a proximate cause of the injury, and therefore the defendant is not liable, and you should return a verdict in his favor of no cause of action.”
Appellant’s complaint of this portion of the charge is as follows:
“Under such an instruction if the jury should find that the negligence of defendant driver was not the original or first cause they could decide against the plaintiff. This is decidedly not the law.”
(!) Another issue presented is appellant’s contention that the trial court committed error in submitting to the jury as an issue of fact whether plaintiff was guilty of contributory negligence. It is appellant’s contention that the trial court should have held as a matter of law and instructed the jury that plaintiff was free from contributory negligence. In considering this phase of the appeal it must be borne in mind that plaintiff was required to allege and prove freedom from contributory negligence. This allegation in plaintiff’s declaration was denied by defendants. So the issue is this: Was the testimony given at the trial such that one or more of the jurors might have found that plaintiff failed to prove her freedom from contributory negligence? Plaintiff’s counsel points out that she, as a passenger on the rear of the motorcycle, had no physical control of the machine. But that alone would not eliminate the issue of contributory negligence if it were disclosed that there was some other thing which plaintiff could and should have done in an effort to avoid the accident. Certainly plaintiff is chargeablé with knowledge of the hazard of riding as a passen
“An invited passenger in an automobile is not absolved from the duty to exercise reasonable care for his own safety, and whether he has done so, under the circumstances shown, usually becomes a question of fact for the jury.” June v. Grand Trunk Western Railway Co. (syllabus), 232 Mich 449.
It follows from our holding as already noted in the instant case that plaintiff’s motion for a directed verdict made at the close of the proofs was properly denied. Under the record the jury might have found that the sole proximate cause of this accident was the negligence of the driver of the motorcycle, or the jury might have found that plaintiff failed to prove freedom from contributory negligence. Under our view of the record as herein stated the trial court, was not in error in denying plaintiff’s motion for a directed verdict nor in denying plaintiff’s later motions for judgment notwithstanding verdict and in the alternative for a new trial.
The judgment entered in the circuit court is affirmed, with costs to appellees.