Dunn v. City of Detroit

*233 Black, J. (after stating the facts). This case focuses attention on that which is known to most writers upon the common law, and certainly to all law students, as the “jackass doctrine.” The nickname, “with whatever implications it may carry” (Prosser On Torts [2d ed], §52, p 291), finds its origin in the English case of Davies v. Mann (1842), * *234 10 M & W 546 (152 Eng Rep 588, 19 Eng Rnl Cas 190); 38 Am Jur, Negligence, § 216, p 902; 65 CJS, Negligence, § 136, pp 758, 759. The doctrine came to initial prominence in this country by means of another rail-crossing suit — the collision, as here, occurred in Detroit — originating in our Wayne circuit (Grand Trunk R. Co. v. Ives, 144 US 408 [12 S Ct 679, 36 L ed 485]). With respect thereto the supreme court said (p 429 of report): “Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 M & W 546), that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence” (citing authorities including Cooley on Torts [1st ed], 675). Michigan recognizes and applies — in proper cases of course — this modification of the strict rule of contributory negligence (Gibbard v. Cursan, 225 Mich 311; Davidson v. City of Detroit, 307 Mich 420; St. John v. Nichols, 331 Mich 148). We usually refer to it as subsequent or discovered negligence (Davidson v. City of Detroit, supra). Little difficulty is experienced in phrasing it properly for jury instructions. As in all cases when the trial judge is moved for an instructed verdict on assigned ground of contributory negligence, the difficulty is *235 not so much with the rule as with its applicability— as a matter of law — to the facts of the particular case. The question resolves itself into one of determination of proximate cause or causes, and such is usually one of fact for the trier or triers of fact (1 Cooley On Torts (4th ed), § 50, pp 120, 121; Prosser On Torts (2d ed), § 50, p 281; Spencer v. Phillips & Taylor, 219 Mich 353; Beebe v. Hannett, 224 Mich 88; Arvo v. Delta Hardware Co., 231 Mich 488). Determination thereof by such trier or triers always depends on receipt of proof tending directly or by proper inference to show that the defendant did discover, or by the exercise of ordinary care should have discovered, that the plaintiff was helpless to avoid the impending harm, and that such discovery was made or should have been made in time to avoid such harm by means at hand. Invariably, the question involves fact elements of time and distance. "Where, as here, allotted time and distance unite in providing that interval which reasonably calls for comprehension and preventive action, the doctrine rightfully comes into play for jury consideration. We are constrained to hold that the time and distance factors shown here are decisive of plaintiffs’ right to jury determination of presence or absence of actionable negligence on the part of the motorman. Accepting for present purposes the motorman’s testimony that the streetcar was traveling at the rate of 15 to 20 miles per hour when it was 200 to 250 feet away from the Merton road cross-over, and that he thereafter slowed the car on approach to Merton, and accepting for same purposes plaintiff Dunn’s testimony that his automobile stood trapped on the tracks 7 to 9 seconds prior to impact, it was well within province of the jury to find that the motorman had ample time — considering his duty of constant lookout ahead and the extremely moderate speed of the streetcar — to perceive and act upon the *236 situation which, on favorable-to-plaintiff view, was unfolding before him. Given at least 5 seconds within which to perceive and safely act upon that which plaintiffs and their witnesses say was the motorist’s visible position of peril ahead, the motorman was allotted more time for such action than is granted by amber warning (prior to stop) of the conventional traffic control signals with which he was regularly confronted as the car proceeded south on Woodward. The motorman knew or should have known — on favorable view of course — that southbound automotive traffic released by the same traffic signal as had just released his streetcar was approaching the rear of the plaintiff motorist’s standing automobile and that the latter could not for such reason be backed off the rails. Pie knew or should have known — on same view of the proofs — that a northbound streetcar was imminently approaching on the rails immediately to the front of the same automobile. By the same token he knew or should have known that convenient means were at hand to slow or stop the streetcar until the plaintiff motorist found a way of extrication. In such circumstances the common law asks no more of him than does the “slow” and “stop” command of a traffic control signal erected and operating by force of statute or ordinance. Our recent decision in Citizens’ Mutual Auto Ins. Co. v. City of Detroit, 348 Mich 329, recorded due augury of affirmance here. While the 2 cases are different in one respect — the question of the plaintiff motorist’s negligence having been left to jury consideration in the one and instructed in the other — , the time and distance factors disclosed in both fairly called for jury determination of indicated issues of proximate cause or causes. In the case before us, as well as in Citizens’ Mutual, the defendant city has cited with appropriate emphasis Rosenfeld v. City of Detroit, 274 Mich 650; and Bruer v. City *237 of Detroit, 332 Mich 613. These cases cannot without resort to sophistry he distinguished, either from Citizens’ Mutual or this case of Dunn. Since both are at war with conclusions now announced — in Citizens’ Mutual and Dunn — , they should be overruled. Ordered accordingly. So far as concerns defendant’s claim that the plaintiff motorist was guilty of contributory negligence on account of failure to get out of the automobile and thus remove himself from the path of danger, we are in accord with the trial judge’s quoted disposition thereof. The point was one for jury consideration and forms no basis for an instructed verdict against plaintiff Dunn. Turning now to defendant’s motion for new trial: We discover no error in the charge of the court as claimed. In view of flat instruction by the trial judge that the plaintiff motorist “was negligent in driving into Woodward avenue that morning,” with consequent limitation of jury function to the question of timely discovery by the motorman of such instructed negligence, the charge so far as present criticism is concerned appears quite fair to defendant. So far as concerns defendant’s insistence that the verdict is contrary to clear or overwhelming weight of the evidence, we agree with the trial judge that defendant has failed to support its assignment in such regard. To sustain such an assignment we have a right to expect, as did the trial judge, that counsel will present in fair detail an analysis of evidence tending, as claimed, to show that the jury strayed from the facts to and beyond the extreme limits we have defined (McConnell v. Elliott, 242 Mich 145; Schneider v. Pomerville, 348 Mich 49). *238 No such showing has been made, either in brief or oral argument. Affirmed. Costs to plaintiffs. Smith, Edwards, and Voelker, JJ., concurred with Black, J. Carr, J. (concurring in affirmance). Under the testimony in the case the trial judge was fully justified in submitting to the jury the question as to defendant’s liability on the ground of subsequent negligence. The legal principles considered and approved in Golob v. Detroit United Railway, 228 Mich 201, and in other decisions in which the question has been involved, are controlling here. Under the charge submitting the case for determination the jury obviously concluded that plaintiff Dunn was placed in a position of danger as the result of lack of proper care on his part, that he was unable to extricate himself therefrom, that defendant’s employee saw, or should have seen, said plaintiff in a position of danger, that said employee by the exercise of reasonable care under the circumstances might have avoided injuring plaintiff Dunn, and that defendant was guilty of subsequent negligence because of the failure to observe the duty resting on it. Such conclusion is supported by the record. The verdict was not against the weight of the evidence, as urged in support of the motion for a new trial, and we find in the charge to the jury no error prejudicial to defendant. The affirmance of the judgment entered on the verdict of the jury is hot inconsistent with the action of this Court in Rosenfeld v. City of Detroit, 274 Mich 650, or with the result reached in Bruer v. City of Detroit, 332 Mich 613. In each instance where the doctrine of subsequent negligence is relied on as the basis for recovery of damages the facts as indi *239 cated by the proofs are controlling. The facts in the Rosenfeld Case clearly distinguish the decision there rendered from the conclusions reached in the case at bar. The trial court directed a verdict in favor of the defendant and the judgment entered thereon was affirmed. It appears from the record in the case that the proofs failed to show that the employee in charge of defendant’s streetcar could have avoided the accident after discovering, or being charged with the duty of discovering, that plaintiff: Rosenfeld could not cross the track to a place of safety. This Court, in consequence, concluded that the doctrine of subsequent negligence was not applicable. In the Bruer Case the testimony indicated that the plaintiff was on the track for a period of from 30 to 35 seconds, that in the exercise of ordinary care he might have observed the streetcar approaching for a distance of not less than 600 feet, and that he took no action for his own safety. The proofs failed to establish that he could not have driven his car from the track in safety and thus avoided injury to himself. On the basis of the record, the case was distinguished from Golob v. Detroit United Railway, supra. Neither the Rosenfeld nor the Bruer Case may be regarded as at variance with the recent decision in Citizens’ Mutual Automobile Insurance Company v. City of Detroit, 348 Mich 329, or with the conclusions reached in the case at bar. In consequence neither of said prior decisions should be regarded as overruled. Judgment affirmed. Dethmehs, C. J., and Sharpe, and Kelly, JJ., concurred with Carr, J. Footnotes [*] In Davies the plaintiff, having fettered the fore-feet of an ass belonging to him, turned it into a public highway; and at the time in question the ass was grazing on the off side of a road about 8 rods wide, when the defendant’s wagon, with a team of 3 horses, coming down a slight descent, ran against the ass and knocked it down, and the *234 wheels passing over it, it was killed. Lord Abinger said that even if this ass was a trespasser, and “the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.”