Adelsperger v. City of Detroit

Clark, J. The jury found that plaintiff’s personal injuries were caused proximately by negligence of defendant city, and assessed damages at $7,500. Defendant brings error and presents many questions, all of which have been considered, some of which will be discussed. The chief contention is that verdict ought to have been directed for defendant on the ground that there was no evidence of negligence on its part. On this question the evidence must be viewed most fav *401 orably to plaintiff. Plaintiff was a passenger for hire in a motor bns of defendant on one of its streets. Seats of the bus were occupied and plaintiff was standing, holding a hand-rail above. Overtaking a Ford car, the driver of the bus sought to pass and was not accommodated. Continuing his effort to pass for nearly three blocks, the driver became angry. There is evidence that the bus moved at excessive and unlawful speed, 30 to 35 miles per hour; that it swayed; that it was very close to the Ford car, as close as five feet; that passengers protested and frequently sounded the buzzer; and that a movement of the Ford toward an intersecting street caused the driver of the bus to make sudden application of brakes and a sudden turn of the steering wheel. He testified: “I knew from the suddenness of my stop and jamming on of both brakes and the suddenness with which I twisted the wheel that if passengers were standing in the aisle, they would possibly be propelled forward or fall or something happen to them, if they were not hanging on. ’ ’ Plaintiff fell, and' there is evidence that she suffered serious and permanent injuries. Defendant contends that there was here a sudden and unforeseen peril, and that the driver was compelled to do what he did in order to avoid collision, and that therefore there is no negligence, citing Ottinger v. Railway, 166 Mich. 106 (34 L. R. A. [N. S.] 225, Ann. Cas. 1912 D, 578); Clifford v. Railway, 216 Mich. 377; and other like cases. In the instant case there is evidence of excessive and unlawful speed, which might be found to have important bearing on the suddenness and violence of the stopping and of the swerving of the bus, and hence a causal relation *402 to plaintiff’s injuries. A peril produced in part, at least, by defendant’s negligence does not excuse the negligence. The case was for the jury. See notes, 4 A. L. R. p. 1499; 31 A. L. R. p. 1202; 45 A. L. R. p. 297; 25 N. C. C. A. p. 423; Kriss v. Field, 241 Mich. 42; Borski v. City of Wakefield, 239 Mich. 656. It is said the verdict is excessive. When on this ground the court may vacate a judgment or require reduction as a condition of' affirmance is fully discussed in Fishleigh v. Railway, 205 Mich. 145, and in many. later cases following the rule there stated. Under such rule, we note that the verdict is within the- evidence, and within precedents of similar cases. We find no appeals to passion, prejudice, or sympathy, and nothing, including the verdict itself, to show that the jury was moved by anything but evidence. It is therefore without our province to disturb the judgment in this respect. Plaintiff had evidence that she was in good health before the accident and to the effect that her injuries were permanent. This evidence, though disputed, made it proper to. admit the mortality tables in evidence to be used or not by the jury according to its conclusion of the question of fact. Wilkins v. City of Flint, 128 Mich. 262. It is urged that the court’s instructions regarding damages and present worth ought to have been more complete or elaborate. The court did not err, and if counsel desired further instruction it should have been requested. Other assignments present no reversible error. Judgment affirmed. North, C. J., and Bead, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision.