*1 129 584 584 ROAD COMMISSION v KALAMAZOOCOUNTY MOERMAN 1983, 28, Rapids. at Grand 58635. Submitted June Docket No. De 11, 1983. cided October Moerman, G. of the estate of Ronald administratrix Yolanda deceased, Moerman, brought an in the Kalamazoo Cir- action County against Kalamazoo Road Commission. cuit Court paved killed when his car left the Plaintiffs decedent was jurisdiction, ran portion under defendant’s of a ditch, through near shoulder of the and struck a tree drinking. At that decedent had been road. There was evidence plaintiffs proofs, the trial court denied defendant’s the close of jury on The action went to motion for a directed verdict. jury negligence and intentional nuisance. The the theories of defendant, part no on the of found 100% decedent, part which was not a on the of intentional nuisance court, accident, damages. of no cause and J., Fitzgerald, granted judgment verdict John E. ^[7] ^[6] [1, ^[2] ^[5] ^[8] ^[3] ^[4] ^[10] [9] [9, Proof Necessity 75 Am Jur Qualification 29 Am Jur 9] 31 Am Jur Am Jur 39 Am Jur 75 10] 31 Am 57 96 ALR3d 745. tration were conducted in conformance with is taken from a human test part. 21 ALR2d 1216. 5 Am 57 Am Jur Am Jur Am Jur Am75 report Am Jur Jur identity determine alcoholic content of blood. ALR2d 2d, Jur 2d, Jur 2d, 2d, 2d, Expert 2d, Negligence 2d, 2d, 2d, Expert 2d, Appeal New as References sufficiency 2d, Trial 608. expert Highways, Trial Evidence 830. Expert 2d, expert Topic Negligence Trial person § §§ or and Error 894. Service, §§ officer based on § testify for Points body, as Streets, or 8.§ Opinion 919-921. Opinion Opinion proof 920. § thing 138. Comparative as to that tests § and basis for admission Evidence Evidence where Evidence 3. in Headnotes findings Bridges such object, of Negligence §§ §§ § or results blood § object, prescribed 36-38. 26, 372. specimen, 27. alcohol concen- specimen, of scientific 56.§ testimony methods. or part or Moerman Kalamazoo Rd v Comm appealed and denied motion for new trial. Plaintiff cross-appealed. and defendant Held: occasionally referring the, opposed 1. The court erred in a, proximate during presumed cause his It instructions. conflicting unexplained given when instructions which are are *2 jury jury may a to that the have followed the erroneous requires The instructions. error reversal. providing liability 2. of of Proof violation a statute civil for imposed the breaches of duties establishes conclu- sively. proof jury An instruction to the that such constituted prima .bowing requiring facie of is error reversal. county duty 3. The state and road commissions have portion improved highways maintain the of the under their jurisdiction designed repair for vehicular traffic reasonable reasonably and condition safe and for fit travel. This statu- tory duty extends to the maintenance of conditions that affect safety using improved portion of the motorists the of the designed highway for vehicular travel. trial court must plaintiffs if determine the tree which decedent struck was gave duty situated such that to a rise of defendant with regard to it. analysis plaintiffs 4. of Evidence an of decedent’s blood was properly sample analysis may admitted. A blood be admitted (1) timely into evidence it is where shown that the blood was (2) (3) particular body by taken from a identified an authorized physician, technologist, registered licensed medical or nurse designated (4) physician, a licensed that the instruments (5) sterile, used properly were pre- the blood taken was (6) kept, (7) labeled, sent, served or transported and if or (8) procedures therein, the method and used the method and procedures (9) conducting test, used identity the person persons supervision under whose the tests were conducted. opinion 5. Evidence of a witness’s toas the effect of the properly alcohol level or content decedent’s blood was admit- qualified expert by having ted. The witness was anas virtue of by recognized read two books authorities in the field. excluding The court opinion expert erred in of an as to whether the condition of the shoulder of the affected vehicle itas traversed shoulder. It anis abuse of discretion opinion testimony to exclude the of a so witness who is schooled experienced inquiry in the field under his measure special knowledge decidedly capabili- skill and transcends the App 129 average fully juror made and who has been aware

ties of the facts. directed verdict on not entitled to a 7. Defendant was regard duty road

ground to the shoulder of the that its with using only persons for its shoulder one of extended plaintiffs purposes. Why decedent was on intended properly main- to defendant’s relevant shoulder roadway for the benefit decedent. tain the allegations argued are defendant 8. While damages, jury no defendant offered awarded moot because authority position. no and remanded. Reversed Walsh, P.J., hold a trial dissented. He would a, the, rather than occasional reference court’s jury constitute instructions does not reversible cause in thoroughly concerning jury instructed where error possi- fully comparative negligence, aware and was thus cause, jury bility of more one where than point. indicate a for clarification on the He would did not need not be disturbed because of an that a verdict should hold any other or omission the trial instruction or error erroneous *3 so inconsistent with sub- court unless failure to do would be justice. by He that none of the errors cited the stantial found justice majority with were inconsistent substantial and would affirm.

Opinion of the Court Negligence Jury — — Instructions. 1. Proximate Cause jury negligence action for is

The correct instruction to a an negligence injury the "a cause” of the must be rather than "the cause”. Jury Conflicting — — 2. Trial Instructions Instructions. presumed conflicting It is which are unex- when instructions plained given jury jury may have the are to a that the followed erroneous instructions. Negligence — Jury — —

3. of Statutes Evidence Violation Instructions. liability providing Proof of violation of breaches a statute civil for conclusively; imposed duties an of the establishes proof prima instruction that such constituted facie showing requiring is error reversal. Moerman v Kalamazoo Rd Comm Highways Highways. — Maintenance county The state and road commissions have a to maintain portion improved highways jurisdiction of the under their designed repair vehicular reasonable and in for traffic condi- reasonably travel; statutory duty safe tion and fit this safety extends maintenance of conditions that affect using improved portion of motorists of the de- (MCL691.1402; signed 3.996[102]). for vehicular travel MSA Sample Analysis. — 5. Evidence Blood sample analysis may A blood be admitted into evidence where it (1) (2) timely particu- that the blood from a shown taken (3) body by physician, lar identified an authorized licensed technologist, registered by designated medical or nurse a li- (4) (5) sterile, physician, censed that the instruments were used (6) properly preserved kept, that the taken was blood or and (7) labeled, sent, transported proce- if or the method and (8) therein, procedures method dures used used in test, (9) conducting identity person of the or persons supervision the under whose tests were conducted. — — 6. Evidence Witnesses Routine. always particular

A testifies he witness follows who procedure may, basis, testify on that so in he did the case hand, though independent at even he has no recollection of procedure following case at hand. Expert — — 7. Witnesses Witnesses Rules of Evidence. may qualified expert A witness be an basis of knowl- skill, edge, experience, training, education; may a witness acquire requisite knowledge by subject studying of a (MRE 702). recognized authorities in the field Expert — 8. Witnesses Witnesses. opinion testimony

It is an abuse of discretion to exclude the of a experienced is so witness who schooled and the field under inquiry knowledge special his measure of skill decid- edly capabilities juror average transcends the and who fully has been made aware of the facts. Walsh, Dissent P.J. *4 Negligence — Jury —

9. Proximate Cause Instructions. the, a, proxi-

A trial court’s occasional than reference rather jury mate cause revers- instructions does not constitute jury thoroughly concerning ible error where the comparative negligence, instructed was fully possi- thus was aware App 584 op Opinion the Coukt cause, jury and where bility than one of more point. on need for clarification indicate a did not — Juey Appeal — Court Rules. Instructions whole, jury verdict Jury to be read as are instructions instruction of an erroneous because not be disturbed should unless failure of the trial court any omission error or other (GCR 1963, justice with substantial be inconsistent do so would 529.1). Newton), C. (by Gary Farrer Sloan, Beneñel & plaintiff. for Gwillim), E. (by Jeffrey P.C. Domeny, &

Lilly defendant. Maher Walsh, P.J., and R. M.

Before: Roumell,* T. JJ. trial from the appeals Plaintiff

Per Curiam. new trial. motion for her denying order court’s killed 1978, decedent plaintiffs May On high- paved portion left his car when ditch, a tree and collided with through a ran way, evidence There was of the road. near the shoulder The road was drinking. decedent had been this ac- brought Plaintiff jurisdiction. defendant’s At the close a jury. came to trial before tion which defen- court denied proofs, the trial The action went for directed verdict. dant’s motion negligence the theories jury to the on found no intentional nuisance. The on the defendant, part on 100% decedent, which was nuisance part of intentional accident, and no not a cause of new motion for subsequent Plaintiffs damages. trial was denied.

* assignment. Appeals by judge, sitting the Court of Circuit *5 Rd Comm v Kalamazoo 589 Moerman op Opinion the Court appeal. of Plaintiff raises five claims error cross-appealed. Defendant also has First, the trial court contends that plaintiff the proximate the as to jury instructed improperly the that point, jury At one the court told cause. of negligence plain- whether the must determine decedent was "the cause” of the proximate tiff’s in all you and that "what have do accident proximate cause of the is to determine cases Yet, at other times supplied.) (Emphasis accident”. they that must deter- jury the court instructed plaintiff negligence mine whether defendant, proximate if is "a” cause. any, objected to timely GCR 516.2. The cor- instructions. See cause v Kirby is "a cause”. rect instruction (1977) Larson, 585, 605; 256 400 400 Mich NW2d J.). Williams, Moreover, where of (opinion instructions, gives contradictory trial court case, on the that theory this we must reverse Kirby v the erroneous instruction. believed jury Larson, Thus, supra, p the trial court commit- ted reversible error.

Second, plaintiff argues trial court instructing erred in that a violation a jury particular "prima statute the defendant is a by negligence. facie” case Plaintiff asserts trial court should have that a viola- told presump- tion of a statute creates a "rebuttable to the negligence. timely objected tion” of Plaintiff "prima facie” instruction. Anderson,

In Zeni v 243 117; NW2d (1976), the rule Supreme adopted 270 Court creates penal violation of a statute or, alternatively, facie” "prima case re- may be "presumption” which party showing part butted on the op Opinion the Court adequate of an excuse. The violating the statute case and "rebutta- "prima Court used both facie” the rule it presumption” adopted. ble to label argues Plaintiff there is a difference and that the Court meant that violation of the stat- really gives presumption. to a ute rise rebuttable however, Zeni, inapposite. That case and the apply only rule announced therein to the violation *6 Zeni, 143; penal supra, p of a statute. See Bau Potts, 229; 266 NW2d mann v (1978). case, present plaintiff In the tried 691.1402; that defendant violated MCL prove to 3.996(102) 224.21; MSA and MCL MSA 9.121. The provide pertinent part: statutes governmental agency having jurisdiction "Each over highway in any highway shall maintain the reasonable repair public reasonably person sustaining so that it is and convenient for safe Any bodily injury

travel. damage property by any to his reason of failure of governmental keep agency any highway under jurisdiction repair, reasonable condition rea- travel, sonably may damages safe and fit for recover the governmental agency.” suffered him from such MCL 3.996(102). 691.1402; MSA <<** * hereby duty it is made the of the counties keep ably repair, they in reasonable so that shall be reason- travel, public county safe and convenient for all roads, bridges juris- and culverts that are within their diction and under their care and control and which are open public provisions respecting travel. The of law liability cities, townships, villages corpora- dámages injuries tions for in for resulting from a failure performance duty respecting of the same roads control, under apply adopting their shall to counties 224.21; county system.” such road MCL MSA 9.121. The above are not penal impose statutes. no They Instead, criminal liability. specifically impose they liability civil for breach of imposed the duties Moerman v Kalamazoo Rd Comm Opinion Court statutes, therein. Violation of these far from creat- ing prima facie case or presumption rebuttable negligence, conclusively negligence. establish In order to governmental violate the statutes unit keep must breach its roads "reason- repair”. able Such a breach negligence. would be Because a violation of the statutes is such, the trial court erred in instructing if the defendant violated either statute it prima negligent”. "was facie That instruction plaintiff made more difficult for to establish Thus, negligence. defendant’s prej- instruction requires udiced reversal.

Third, plaintiff maintains the trial court that, in ruling law, erred as a matter defendant did not a duty have to remove the tree near the shoulder of the roadway, taking thus this away issue from the jury. governmental unit,

The of a liability including a county, injuries upon the purely Kalamazoo, Goodrich v County statutory. (1943). 442, 445; 8 NW2d 130 applicable 691.1402; 3.996(102), statutes are MCL MSA *7 224.21; 9.121, MCL MSA set forth above. The statute, however, former imposes important an limitation on the of liability the state and the county road commission: duty "The of the county state and the road commis- repair sions to highways, maintain liability and the

therefor, only shall extend improved portion to the the highway designed for vehicular travel shall not sidewalks, include any crosswalks or other installation improved portion designed outside of the highway of the for vehicular travel.” Thus, the duty of the state county road com- missions is "to keep the 'improved portion of the App 584 129 Mich

592 Opinion of the Court in 'reason- travel’ vehicular designed highway safe and reasonably in condition repair, able Mich County, 16 Wayne Mullins v travel’ fit for lv den (1969), 246 373, 3; fn 168 NW2d 365, App (1969). Mich 791 382 duty statutory that settled

It is well of the paved area to maintenance restricted has the state Thus, has held this Court road. Hall v guardrail, maintain properly duty 592; 311 App 109 Mich Highways, Dep’t of State (1982); Van lv den (1981), 413 Mich 942 813 NW2d 133; Dep’t, App 59 Mich Highway State Liere v v & Trust Co (1975); Detroit Bank 369 229 NW2d 131; 222 55 App Mich Highways, State Dep’t of of the (1974), as the shoulder as well 59 NW2d 37; 188 Michigan, v App 32 Mich Johnson road, (1971). See, 762 lv den (1971), 385 Mich 33 NW2d Comm, 29 County Road Joseph St Lynes v also, (1979) sign); (stop 51; 185 NW2d App Comm, Road County Miller v Oakland (1972) (tree the side of 215; 204 NW2d App road). statutory these cases is gist The the maintenance of conditions extends to duty improved using the of motorists safety affect designed for vehicular of the portion travel.1 Comm, supra, p Joseph this example, Lynes v St Road For

Court said: proper sign placed by stop had been "In the instant case a controlling purpose traffic. The the flow of authorities defendant had the for the statute, place duty, imposed by and maintain highways upon stop sign reason- make travel in a manner to ably safe.” argument reject on to the defendant’s The Court went keep highways limited to and fit for travel [is] "to safe pave- physically pavement equipment touches the itself and whatever court concluded: ment”. 29 Mich 59. The integral part signals an the flow of traffic are "Traffic which control highway. presence improved portion absence of the such maintained, they signals, in which are as well as the conditions duty imposed upon directly statutory the defendant relates to the *8 Moerman v Kalamazoo Rd Comm op Opinion the Court case, In the present we need to determine whether the tree affected the safety of motorists using the shoulder of the road. We are uncertain as to whether decedent’s vehicle struck the tree while the vehicle was still completely on the shoul- der or whether it collided with the tree only after one or more of its wheels had left the shoulder. If positioned tree was such that average vehicle could have struck the tree without any of shoulder, the vehicle’s leaving wheels the tree would affect safety motorists using the shoulder. Under circumstances, such the defen- keep dant’s the road reasonably safe would extend to the record, maintenance of the tree. The however, does not disclose whether those circum- stances existed in this case. Consequently, we are unable to decide whether the defendant had a duty If, maintain the retrial, tree. the duty issue brought court, before the the court shall decide the issue by determining whether the circum- stances creating that duty exist.

Fourth, the plaintiff contends that the deposition of defendant’s expert, Dr. Stockmar, Richard should not have been admitted into evidence. opined Stockmar the blood alcohol level of plaintiff’s decedent is "a reasonable explanation for erratic driving”. Plaintiff argues testimony lacked a foundation.

In order to establish a foundation for the admis- sibility sample blood analysis, must be shown: "(1) (2) that the blood timely particu- taken from (3)

lar identified body by an physi- authorized licensed cian, nated technologist, medical registered desig- nurse (4) physician, licensed that the instruments maintain the in a condition safe and fit for travel.” Mich App 59. *9 App 584 594 Mich 129 op Opinion the Court (5) properly sterile, was the blood taken were used preserved (7) (6) labeled, transported if kept, or (8) therein, the used sent, procedures method and or test, conducting procedures used method and (9) person persons under identity of the estab- were conducted be the tests supervision whose lished.” Gard App Haulers, Mich 20 Michigan Produce v (1969), 402, 407-408; 73 lv den NW2d 174 (1970). 777 and fifth condi- the fourth asserts that Plaintiff requirement, to the fourth not met. As tions were sample taking physician he testified sample heart in order from the took blood purpose contaminating sample. The avoid prevent using is to contamina- instruments sterile samples. physi- that the We find of the blood tion cian’s samples testimony to establish that contaminating is sufficient them. without

were taken points condition, out that to the fifth As Sergeant not remem- that he could testified Stack plain- containing the blood of the vial ber whether preservative. However, tiff’s decedent contained App 101, 110; 180 Lovins, 24 Mich in Mason v (1970), "the held that where 73 this Court NW2d particu- always he follows witness testifies that testify may procedure, he he on that basis lar DeVries, who David. so in the case at hand”. did preservative analysis, testified that a did the blood routinely placed included in vials that were was the samples. Thus, the fifth used to take blood

kits condition was met. was that Dr. Stockmar

Plaintiff also maintains qualified testify on of alcohol not as to effect Generally, trial court’s behavior. is within testimony expert to admit or exclude discretion and an abuse of discretion. it is unless not be disturbed decision will DeGrandchamp, 71 Groth v (1976), App lv den 576 443; 248 NW2d Mich v Moerman Kalamazoo Rd Comm 595 Opinion of the Court (1977). Groth, In Mich supra, the trial court did allow witness who had analyzed content of alcohol the blood of dece- dent as to the effect testify of such an alcohol level on intoxication. Court This affirmed on ground qualifications that "the witness lacked the permit her to an necessary testify expert on given the effect blood alcohol an content on * * individual Stockmar received a Ph.D. in but had biochemistry no train- ing the effects alcohol an His individual. solely based on what he had testimony read *10 An qualified two books. expert witness must be as skill, an expert by "knowledge, experience, train- ing or MRE education”. Inasmuch Stock- recognized mar had studied authorities in the area, may he be considered have enough "knowledge” of the effects alcohol blood levels expert to be considered an in behavior least, that, At subject. we cannot in say consider- ing such, him as the trial court abused its discre- tion.

Fifth, plaintiff claims that court trial erred sustaining defendant’s objection opin- to certain ion testimony offered by plaintiffs expert, Ser- geant Capman. Plaintiffs asked attorney Capman if, in opinion, his condition of shoulder affected a vehicle as it traversed the The shoulder. court sustained defense counsel’s on the objection ground that Capman qualified give was not such an opinion.

In Link v 123; McCoy, (1972), NW2d 278 it was said: testifying "Unless can be offi- established experienced cers are so schooled and that their measure special knowledge skill and decidedly transcends capabilities average of an juror, who has been made App 129 Opinion of the Court facts, impact point their physical fully aware of not received.” opinions should be received Capman had The record discloses of traffic inves- the area education considerable he attended safety. Specifically, traffic tigation and at Northwest- in accident reconstruction a course Michigan course at State a similar University, ern teaching had accident-investi- University and been police local In gation academy. at courses addition, experience had considerable Capman Given his education and reconstructing accidents. reconstruction, Capman in accident experience opinion to offer his on how clearly qualified was road would have affected a the shoulder its traveling on it. trial court abused vehicle ruling discretion in otherwise. argues that trial cross-appeal, defendant

On its motion for directed denying court erred first, its ex- argues, duty verdict. Defendant for one of using the shoulder only persons tends no purposes intended and that evidence that decedent used road one received 3.996(102) 691.1402; But MCL MSA purposes. those place such on the of a does a condition left road commission. decedent county Why may negligence, road be relevant decedent’s but *11 not duty properly is relevant to defendant’s road for of decedent. maintain the the benefit Second, that, the argues jury defendant because damages, plaintiff’s allegations awarded no of er- authority ror are moot. Defendant cited no for has position such a must it. reject we errors, the judg- Because of numerous reversible ment and a new trial is ordered. below reversed costs, party

Reversed and remanded. No neither having prevailed full. Rd Moerman v Kalamazoo Comm 597 Walsh, F. P.J. D. Dissent (dissenting). Walsh, P.J. I Respectfully,

dissent. majority

The finds reversible error in the trial court’s references to "the proximate cause”. Larson, v 585, 600-607; Kirby

In (1977), Supreme the Court NW2d found that concerning proximate instructions cause were Reviewing erroneous. the instructions as a whole that, adequacy, to determine their the Court found Kirby, given the the error facts was reversible. significance Those facts included the crucial cause, proximate the jury’s repeated issue of dem- concerning onstrations of confusion proximate cause, repetition and the of judge’s the erroneous response request instructions jury’s assistance. Kirby judgment,

In decision my does in the mandate reversal instant case. On the review of the contrary, instructions record persuades their me that entirety no reversible error occurred in this in this regard case.

In contrast Kirby, instant case was sub- mitted to the under jury recently adopted rule of comparative negligence. The was thor- jury oughly concerning instructed comparative negli- gence and was thus made fully possi- aware of bility that may there be more than one cause of the plaintiffs damages.1

In significant further Kirby, contrast was instructed that: plaintiff proof following "The has the burden of each propositions: "(a) plaintiff damage; That sustained "(b) negligent statutory That the defendant was in violation roadway; to maintain the "(c) That the defendant was a cause plaintiffs injuries damages. proof "The defendant has the burden on its claim that negligent ways decedent was in one or more of the claimed *12 584

598 129 by Walsh, D. F. P.J. Dissent juror con no indication of instant record contains concerning proxi for clarification fusion. No need case, this by was indicated mate cause form, reflects accurately which and the verdict under jurors’ inquiries, suggests appropriate plaintiffs negligence of the elements standing claim. defendant, instructions, by you in these as it is stated to contributing damages proximate negligence of the a cause such the was plaintiff. negligent you was or that defendant’s "If find the not defendant plaintiffs injuries plaintiffs negligence proper not cause of was damages, you will for the defendant. find negligent you defendant’s "If find that the defendant was plaintiff’s injury, you negligence proximate then was a cause damages. plaintiffs total amount of should determine the plaintiff also whether decedent was "You must then determine negligence proximate negligent cause of his death. plaintiff awas and whether decedent’s negligent if you not or decedent’s "If find that the decedent was death, negligence proximate you then will was not a cause his damages. plaintiff for in the full amount for render a verdict party negligent negligence you that the "If was find each plaintiffs injuries party or cause of the of each damages, degree you of such then must determine the plaintiff. expressed percentage attributable to by part plaintiff recovery "Negligence bar does not However, plaintiff against attributable to amount of plaintiff.” percentage the defendant. by will Court to reduce the be used damages you by the to have been sustained which find Form "Verdict "We, following questions jury, answers to the submit- make by ted the court: "Question negligent in Was the defendant road commission #1: reasonably Highway Red safe and it did maintain Arrow public convenient travel? No) (Yes "Answer: No or "Question guilty main- road #2: Was the defendant commission taining an intentional nuisance? (Yes No) "Answer: Yes or #2, any Questions "If not answer the answers are "No” to & do #1 questions. further "Question negligence a Was the defendant road commission’s #3: injury damage cause of or to the decedent? (Yes No) "Answer: No Rd Comm Moerman v Kalamazoo Walsh, P.J. Dissent I find no reversible error in the trial court’s *13 the, a, occasional to as opposed proxi- references to mate cause.

Second, majority finds reversible error following instruction to the jury: "Now, we come down to the violation of statutes. If defendant, you anybody find that or else for that matter, the statute violated before or at the time of the occurrence, prima negli- then the defendant was facie However, gent. you must then decide whether such proximate negligence was a cause of the occurrence and may rebutted. be

"Now, may it you prima be that not do know what facie means. In Black’s Law Dictionary, defines it as follows: 'Evidence which suffices proof for the of a particular fact until or by contradicted overcome other ” evidence.’

I agree with majority violation of MCL 691.1402; 3.996(102), 224.21; MSA and MCL MSA "Question proximate Was the #4: intentional nuisance cause injuries damages plaintiff’s or decedent? (Yes No) No "Answer: or "Question plaintiff’s damages? What is total #5: amount of $None "Answer: portion companion- "What is that which is attributable to loss of ship society? $None "Answer: "Question plaintiff’s negli- Was #6: decedent Ronald Moerman gent? (Yes No) "Answer: Yes or "Question plaintiff’s negligence Was the #7: cause of injury damage plaintiff? or to that (Yes No) "Answer: Yes or no, any questions. "If the answer is do not answer further "Question Using negligence #8: the total of the 100% combined parties tiff, proximately injury damage plain- which caused the to the percentage negligence plaintiff, what of such attributable Ronald Moerman? "Answer: 100%” by Walsh, P.J. Dissent negligence. I But in this case 9.121, establishes find court’s reference error in the no reversible agree negligence. "prima I do with facie” proof plaintiffs majority was burden The court’s of this instruction. reason increased "prima negligence made in was facie” reference initial consideration connection with instruction, As I read the cause. issue telling plain- merely jurors that court breach of to establish defendant’s tiff first had duty unless not recover she could but conduct was that defendant’s also established proximate damages.3 plaintiffs There was cause of "prima when facie” no mention upon jury the to the statutes court later read *14 I based. As claim was which persuaded whole, I am read the instructions as prejudice and that suffered no concerning adequately jurors instructed were principles. Finding inconsistency legal no relevant justice, I would not disturb with substantial challenged of the instruction. because verdict 1963, 529.1. GCR plaintiffs majority

Next, claim addresses ruling that, "in as a that matter of the trial court erred duty law, the defendant did not have near the of the road- to remove the tree shoulder way”. challenged plaintiffs expert ruling was that

The guard- concerning testify witness would be able to ("the roadway im- rails and the shoulder of the proved portion designed vehicu- of the 3;996[102]) travel”, 691.1402; lar MCL MSA but when, "prima repeated at The court facie” reference instructions, point jurors the various a later traffic Again, in the it read to the safety plaintiffs decedent. statutes relevant to the conduct of gist decedent’s of the instruction was proximately conduct had to have caused the accident. v Kalamazoo Rd Comm Moerman Walsh, Dissent P.J. testify would not be allowed to it that was defen- "along dant’s to remove trees located the side highway”. ruled, however, court further "testify witness would be allowed to to his opinion interpretation as to the in statute highway”. relation subsequent plain-

In witness, examination of the explored depth question tiff in of whether the plaintiff’s tree with which decedent’s car collided guard- constituted an obstacle front of which rail should have been installed in the interest of safety. presented motorist claim, Plaintiff’s jurors by instructions, the court in final in- allegation an cluded of defendant’s presence clump of "a of trees located within highway right-of-way only 10 feet from the edge”. pavement plain- There was no claim that completely tiff’s decedent’s car was on the shoul- eight der, which had feet, a maximum width when collided with the tree. my judgment,

In the issue of whether the tree safety using affected the of motorists the shoulder adequately presented jury. the road was to the I persuaded am not reversible error the court’s ruling.

Finally, majority finds reversible error opinion testimony the court’s exclusion of certian by plaintiff’s expert, Sergeant Capman. offered Again, per- I find no reversible error. I am not *15 testimony necessarily suaded that the would have jury. City aided the Detroit, Cook v (1983). 724; 337 NW2d 277 Given the facts perceive case, this I do not denial substantial justice testimony. exclusion of this GCR 529.1.

I would affirm.