Ehlers v. Barbeau

*530 Btjtzel, C. J. Plaintiff alleges that he and a companion were crossing from the north to the south side of Ludington street at the intersection of 16th street in the city of Escanaha at 1 a. m. on September 18,1937; that before they came to the center line of the street they stopped to allow two cars eastbound to pass them; that when a short distance from the intersection, the second car, which was being-driven by defendant and which had been following-very close behind the first car, suddenly turned out to pass the car ahead, went over to the wrong- side of the street, and while proceeding* very rapidly, struck plaintiff and caused him severe injuries. The jury awarded plaintiff $5,706.50 and judgment for this amount was entered in his favor. Defendant on appeal claims that his motion for a mistrial and also for a directed verdict should have been granted at the close of plaintiff’s proofs or when renewed after defendant’s case was concluded. He claims that the verdict is against the great weight of the evidence, that the damages are excessive, that the court erred in failing to limit the time of final argument, that plaintiff’s argument to the jury was improper and prejudicial, and that the question of insurance was improperly introduced into the case. The main question, however, is whether or not plaintiff was guilty of contributory negligence. ■ The accident took place on a rainy night when visibility was poor. The young- lady, who was riding with defendant, stated she was unable to see out of her side of the windshield because there was no windshield wiper. Defendant, who had the benefit of a clear windshield, stated, at various points in his testimony that he was unable to see either plaintiff or his companion as they stood in the street, that he saw one man but could not identify which of the two he was, that he saw plaintiff’s companion only, and *531 that with the lights on his car he was able to see a block ahead. Although plaintiff had driven a car for 22 years, when pressed for an answer was unable to make an “estimate” of the speed with which defendant approached when he struck him. Defendant denies that he drove his car in front of the car ahead of him in an attempt to pass it, or that he was on the wrong side of the yellow dividing line in the street, or that he ran plaintiff down. He claims, rather, that plaintiff carelessly walked into his car and caused his own injuries. As we understand it, counsel for defendant argues that the accident could not have occurred in the manner alleged by plaintiff because if he had been first struck by the fender he would have sustained injuries to his legs and body, of which there was no indication when he was examined by a physician soon afterwards. Thus, it is contended that plaintiff stepped into the side of the car and struck his head against the hinge on the front of the left door. Defendant also argues in his brief that by mathematical formula it would he physically impossible for his car in the rear of another to turn out and reach the middle of the intersection in the time claimed by plaintiff. While there is the usual conflicting testimony of witnesses to an accident which happened in an instant, there is evidence to support plaintiff’s claim of how the accident occurred and his freedom from contributory negligence. From the testimony the jury was entitled to find that defendant was driving at a speed greater than was permissible due to the poor visibility, that he did not see plaintiff standing in the road, that plaintiff was struck by the left front part of the car, that the headlight may thus have been damaged and the fender slightly dented, that plaintiff in some way was thrown over the fender so that his head struck the hinge on the door, leaving *532 hair and blood on it. It may be somewhat difficult to give a logical explanation to every detail of the occurrence, but the testimony and physical facts amply sustain plaintiff’s claims. As the trial court pointed out, the witnesses’ estimates of- speed and distance were estimates only, and where despite obvious inaccuracies it appears that negligence of defendant and plaintiff’s freedom therefrom were substantially proved, the determination of the jury should not be disturbed. The verdict was far from being excessive. The examining physician testified that plaintiff was brought unconscious to the hospital, that he was bleeding profusely from his head with a scalp wound, that he had a contusion over the right eye and that his nose was lacerated. An opening* approximately two inches long* and an inch and a half wide had been made in the skull, the right parietal bone had been fractured and comminuted, the bone fragments being driven down through the covering of the brain into the brain substance one half to three quarters of an inch. The skull had to be further trephined, so that it will be from two to seven years before the soft spot on the head is completely healed. Plaintiff was unconscious for a week and semiconscious for a few days afterwards. He suffered considerable pain and complained at the trial seven months after the accident that he was still bothered with dizziness and headaches and that he had been unable to work. The physician also testified that it would probably be no less than a year before plaintiff could resume working*. Plaintiff’s nose bears a little deviation to one side as a result of the injury to it. Counsel for defendant concedes that $706.50 represented expenses for hospital, drugs, and doctors’ bills. The amount of the verdict was not excessive. *533 In response to an inquiry by the defendant’s counsel as to how much time would be allowed for argument, the trial judge stated that he would not limit either side. This was permitted under Court Buie No. 37, § 3 (1933). Defendant complains, however, that plaintiff’s counsel made-a relatively short argument at the close of the proofs, that consequently his counsel spoke at about equal length, and thereupon plaintiff summoned his “heavy artillery” in his closing argument. There is certainly nothing novel in the practice and it is not forbidden by any positive rule or principle. It has, on the other hand, been recognized as an effective strategical method so long as kept within proper bounds. In every lawsuit one party will necessarily have the last word, and counsel representing defendants have recognized the plaintiff’s advantage and taken steps to minimize its force and effect. (See Goldstein, Trial Technique, pp. 618, 619, 627.) The trial judge might be requested to limit the rebuttal to a fraction of the time devoted to the main presentation, as defendant himself suggests, but this question of trial conduct rests largely in the discretion of the trial judge and where expressly sanctioned by the rules of court, we have no disposition to interfere with it. It is also contended that plaintiff’s counsel went far afield in speaking of the scant benefit that money can bring to one stricken in health and physically unable to enjoy it. Ordinarily as long as the argument is confined to the evidence, courts are hesitant to interfere with impassioned oratorical flourishes of even the most extravagant nature. See Conn v. Railway Co., 201 N. C. 157 (159 S. E. 331, 77 A. L. R. 641), and subsequent annotation. It is doubtful whether counsel’s remarks about the worthlessness of a million dollars on a bed of pain transcended the *534 customary latitude of argument, particularly as plaintiff was able to appear before the jury and to take the witness stand. If counsel was overzealous, tbe record does not disclose positive impropriety to which objection was specifically taken. We have repeatedly declined to substitute our own conclusion formed from a printed record for that of the judge who participated in the trial and who could be appealed to if overzealous counsel overstepped the bounds. Rutter v. Collins, 103 Mich. 143; Peters v. Wurzburg, 267 Mich. 45. No prejudicial error is established. The insurance issue was unfortunately injected into the case in what appears from the record a wholly accidental manner. The nurse who attended plaintiff was questioned about what defendant had said to her about the accident and she stated: “Well, insofar as his car was fully protected — ■” at which point she was interrupted by defendant’s objection and the testimony was stricken, the jury being instructed to disregard it. In the charge the jury was specifically cautioned to consider only evidence ■which had been legally admitted and was again told to disregard the statement of the witness. There is nothing to show that the question was purposely asked to elicit the witness’s answer as in Van Dyke v. Knoll, 262 Mich. 644. Under the circumstances, the reply coming unexpectedly and voluntarily, it was not reversible error. The other claims have been examined but found to be without merit. The judgment is affirmed, with costs to plaintiff. Wiest, Bushnell, Sharpe, Potter, Chandler, North, and McAllister, JJ., concurred.