Hunt v. Deming

Souris, J. This appeal arises out of an automobile accident which occurred on a rainy November evening in 1960 in Mecosta county. Plaintiffs, Mr. and Mrs. Hunt, were proceeding easterly on highway M-20 in an automobile driven by Mr. Hunt. As they drove along, a stalled automobile was pushed onto the eastbound lane of the highway ahead of the Hunts from a driveway intersecting the highway on the. south. To avoid a collision the Hunt vehicle came to a stop on the paved portion of the highway, and while so stopped was struck from the rear by an automobile driven by defendant Jon Deming. *583 Plaintiffs, claiming damages, brought suits which were consolidated for trial. A jury returned a verdict of no cause for action. Plaintiffs appeal from the trial judge’s denial of their subsequent motion for judgment notwithstanding the verdict or for new trial. Plaintiffs first argue that defendant Deming was guilty of negligence as a matter of law in failing to operate his vehicle so as to be able to stop within the assured clear distance ahead, CLS 1961, § 257.627 (Stat Ann 1960 Rev § 9.2327). The disabled car was pushed into the Hunts’ path, just as they had topped a rise in the highway and were heading down a curve bearing to the right. Defendant Deming testified that he had been following the Hunt car for several miles but that he had lost sight of it after it had topped the rise and did not see it again until his own car came over the rise, at which time the Hunt vehicle appeared to be moving less rapidly, whereupon Deming slowed his speed from 45 to 40 miles per hour. At this time he was about 500 feet from the Hunt ear and he testified that he did not become aware that it was stopped until he was 150 feet from it, whereupon he applied his brakes but nonetheless collided with the Hunt car. Deming further testified that before the collision he never saw the disabled vehicle. He claimed that the sudden emergency created by the presence of the disabled vehicle on the highway, necessitating the stoppage of the Hunt vehicle, accounted for his own failure to stop sooner. We think this evidence, if believed, would entitle a jury to find that Deming was not operating his vehicle in an imprudent fashion under the circumstances, and that defendant’s response to the sudden emergency confronting him was reasonable, thereby excusing compliance with the requirements of the *584 assured clear distance ahead statute. This being so, the trial court did not err in refusing to find Deming guilty of negligence as a matter of law. See Dismukes v. Michigan Express, Inc. (1962), 368 Mich 197, and cases cited therein. See, also, McKinney v. Anderson (1964), 373 Mich 414, and Baker v. Alt (1965), 374 Mich 492, 496, 497. Plaintiffs also allege that the trial judge committed numerous errors in his charge to the jury. We shall not detail these allegations because we do not think they are properly before us on this appeal, plaintiffs having failed to make timely objection to the instructions as required by GCR 1963, 516.2: “.2 Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” Counsel may submit requests for instructions to the trial judge at or before the close of evidence and the trial judge is required to inform counsel of his action upon their requests prior to their arguments to the jury. GCR 1963, 516.1. Thus, by submitting comprehensive written requests to charge, upon which the trial judge must rule before arguments are made to the jury, counsel should be in a position to know when the charge is given whether a proper instruction was omitted or an improper one given. At the conclusion of the charge, the trial judge should excuse the jury and then give counsel an opportunity to make on the record such objections to the charge as they may have. GCR 1963, 516.2. When counsel have completed their statements of objections, the jury should be recalled for further instruction when necessary and for direction by the *585 trial judge to retire for deliberation upon its verdict. Only if such procedure is followed by court and counsel can the rights of all parties properly be protected and objections to erroneous jury instructions assuredly be saved for appellate review. Plaintiffs point to language in prior cases, for example, Jorgensen v. Howland (1949), 325 Mich 440, in support of their claimed right to assert on appeal error in jury instruction notwithstanding their failure timely to object in the trial court. It-suffices to note that those cases were decided before the explicit requirement of G-CR 1963, 516.2 was promulgated. This is not to say that this Court may not, in unusual circumstances, and to prevent manifest injustice, take note of instructions which err with respect to basic and controlling issues in a case even though objection thereto was not made before the jury retired. See 2 Honigman and Plawkins, Michigan Court Rules Annotated (2d ed 1963), p 567. It is to say, however, that the Court will exercise its discretion in this fashion but sparingly. To do otherwise would be to encourage counsel to maintain silence in the face of correctable erroneous instructions, hoarding their objections for use in the event of an unfavorable jury verdict. The course of expeditious justice is furthered by requiring that such objections be made while time yet remains to set the record straight. Affirmed. Costs to appellees. T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Smith, O’Hara, and Adams, JJ., concurred.