Rogers v. Benedict

Black, J. (after stating the facts). In Schattilly v. Yonker, 347 Mich 660, we considered the dangers of wholesale adoption of self-serving and argumentative requests to charge submitted exclusively by one party. Here, as in Schattilly, the jury charge (pertaining to the question of liability) was made up from defendant’s requests as preferred. The first 2 paragraphs of the quoted portion of such charge, together with occasional minor changes of phraseology, constitute the only exceptions. What we have quoted is “replete with error” (quotation from Schattilly, p 668 of report). It led the jury to understand that Mrs. Rogers “had a reciprocal duty to operate her automobile on said 20th street so as not to collide with another vehicle on or about to enter said 20th street;” to understand that Mrs. Rogers was unqualifiedly burdened with duty to “anticipate that it (the milk truck) might be backed out into the highway;” to understand that the defendant was free from negligence “in starting to back his truck” providing he and his helper “saw no moving traffic;” to understand that applicable duties of the 2 drivers became “equal and coextensive and each owed the same duty to discover the other and take the means available to avoid the collision,” and to understand that Mrs. Rogers was guilty of negligence if she failed “to observe the movement of the truck.” [75] The charge made no reference to the immediately superior passage-right, of a motorist lawfully starting or proceeding forward on the paved portion of a street or highway, over the passage-right of another motorist about to enter, at the same time from a private way, the identical portion of such street or highway. It failed to spell out the specific duty of a motorist undertaking to back, with substantially blinded view of the immediate area of expectable danger, into a busily occupied street, and it applied the duty-rules of section ,257.648* to the plaintiff motorist but not to the defendant. Finally, and in no portion of the somewhat repetitious paragraphs of the charge concerning contributory negligence, do we find qualificational advices respecting that which is known in our reports as the doctrine of sudden emergency. Mrs. Rogers, initially at least, was possessed of that general right a motorist enjoys when starting or proceeding lawfully forward on a public way; the right to assume that drivers of vehicles parked or stopped ahead in private ways will not move into his rightful path save only when relative distances (and, usually, rates of speed) reasonably permit such movement. Such assumptive right, applied to the disputed, as well as undisputed, facts before us, brings the mentioned emergency doctrine into rightful instructional play. This does not mean that the trial judge was obligated, in the absence of properly couched request of plaintiffs, to instruct the jury with respect to such emergency doctrine. It does mean that the instructions we have criticized constituted reversible error in the absence of an appropriate proviso addressed to employment of that doctrine should the facts as found by the jury so warrant. [76] Realizing that litigation should come to an early end, and pursuing duty to declare errors harmless whenever such conclusion is fairly permissible, we have carefully reviewed the entire charge, and the separately certified record with transcript, in effort to apply our rule that contest errors are not reversible if the charge “taken as a whole clearly states the law” (Smalley v. Detroit & Mackinac R. Co., 131 Mich 560, 563; Max v. City of Detroit, 337 Mich 674, 678). The effort turns out to be abortive. Nowhere in the charge do we find that the errors to which we have alluded were repaired, in general substance or otherwise. In these circumstances we conclude with reluctance that the judgment must be reversed. Reversed for new trial. Costs to plaintiffs. Dethmers, C. J., and Sharpe, Smith, Edwards, Voelker, Kelly and Carr, JJ., concurred. Footnotes [*] CLS 1952, § 257.648 (Stat Ann 1952 Rev § 9.2348). — Reporter.