Mason v. Wurth

Per Curiam. Plaintiff George Clark appeals as of right the circuit court’s order denying his motion for new trial. He brought the motion following a jury verdict of no cause of action in his wrongful death claim. We affirm. The case arises from an automobile accident. Bradley Mason sustained fatal injuries after he drove his automobile into the rear end of a tractor-trailer owned by defendant Kanfer Construction Company. Paul Wurth, the driver of the tractor-trailer, had parked in the right lane of four-lane southbound Woodward Avenue in Bloomfield Hills. Wurth had just been involved in another accident. He had pulled over, turned on his emergency flashers, and left his vehicle in order to exchange information with the other driver. While the two drivers were talking, Mason collided with the rear of the trailer. Plaintiff Clark argues that the trial court erred in instructing the jury on the sudden emergency doctrine, SJI2d 12:02. Wurth admitted having stopped his vehicle next to a sign which read, "No parking, standing or stopping at any time.” MCL 257.674(h); MSA 9.2374(h). The judge instructed the jurors that [131] Michigan law prohibits parking in the roadway. He told them Wurth’s violation of the law could be excused if they found he used ordinary care and, because of the circumstances, was still unable to avoid the violation. The instruction on sudden emergency is unnecessary when a violation of the no parking statute is alleged, MCL 257.674(n); MSA 9.2374(n). The no parking statute contains its own legal excuse. It provides that "[a] vehicle shall not be parked, except if necessary to avoid conflict with other traffic or in compliance with the law . . . .” The statute expressly excepts otherwise prohibited parking when necessary to comply with the law. The exception includes compliance with the law requiring an individual to stop at the scene of an accident and exchange certain information. The jury was instructed as to this portion of the statute. Therefore, it was unnecessary to give the sudden emergency instruction, as it contains the same excuse. However, we decline to reverse the verdict. The error was harmless. The instruction was merely cumulative and did not provide the jury with an erroneous basis for excusing any violation by Wurth. Our refusal to reverse is consistent with substantial justice. Petrove v Grand Trunk W R Co, 174 Mich App 705, 710-711; 476 NW2d 733 (1989). Next, Clark contends that the trial court erred in instructing the jury on careless and reckless driving as it pertained to Mason. MCL 257.626; MSA 9.2326. Clark argues that no evidence was presented demonstrating that Mason had operated his vehicle in a careless or reckless manner. We disagree. Eyewitness testimony established that Mason was changing lanes erratically, weaving in and out [132] of traffic and driving at an excessive speed. The testimony was sufficient to raise, as an issue of fact, whether Mason was driving in a careless or reckless manner under the statute. The instruction was proper. Affirmed.