Butler v. City of Detroit

340 Mich. 246 (1954)

65 N.W.2d 837

BUTLER v. CITY OF DETROIT.

Docket No. 63, Calendar No. 46,016.

Supreme Court of Michigan.

Decided September 8, 1954.

Markle, Markle & Eubank, for plaintiff.

Leo A. Sullivan (James S. Shields, of counsel), for defendant.

DETHMERS, J.

Plaintiff appeals from judgment entered on a jury verdict of no cause for action in her suit for damages resulting from personal injuries sustained when defendant's bus ran over her. The case was submitted to the jury on questions of defendant's negligence and plaintiff's freedom from contributory negligence. Plaintiff claims as error the trial court's refusal to instruct the jury, as requested, on the theory of subsequent negligence.

Plaintiff was on defendant's loading platform. In some manner she and the moving bus came in contact and she was knocked or fell down, coming to rest with her legs extended in front of her and under the bus. She claims that she and other persons then screamed and the bus stopped, that up to that point she had not been injured seriously, but that thereafter the bus started up and its right rear wheel ran over her left leg and foot causing the injury for which suit was brought. Defendant's bus driver testified that he heard the screams and stopped the bus; that the screams increased and it seemed as though he heard someone say, "Pull ahead;" that he then thought the *248 bus was on something and so, without investigating or actually knowing the reason for the screaming, he thereupon started the bus, pulled ahead 2 or 3 feet, and heard the wheel of the coach roll off some object; that he stopped the bus again, got out and walked to where plaintiff lay injured.

Plaintiff did not establish freedom from contributory negligence as a matter of law, as she claims, in getting her leg under the bus. Was there a question of subsequent negligence on the part of defendant's driver to go to the jury? In declining to so instruct the jury and in denying plaintiff's motion for a new trial the court expressed the view that when the bus driver stopped the bus after hearing screams and then heard the screams increase and thought he heard someone say "Pull ahead," he was put suddenly in peril, confronted with a sudden emergency, under which circumstances the judgment he exercised in pulling ahead 2 or 3 feet ought not to be judged by the standard of what, upon reflection, would have seemed the best course of action to pursue after the peril had ended, citing Fehnrich v. Michigan Central R. Co., 87 Mich 606; that the driver had acted within seconds after hearing the screaming and had had as much right at that instant to assume that it would be helpful and cause less harm to move the bus ahead than to keep it standing while getting out to investigate, as plaintiff urges that he should have done; that to permit the jurors to speculate on what the driver should have done under an emergency condition would make them "typical Monday quarterbacks;" that the driver was, as a matter of law, not guilty of subsequent negligence.

Was the question of the driver's subsequent negligence one of law for the court or of fact for the jury? Under many circumstances the question of whether a defendant's actions or failure to act were in accord *249 with what an ordinary, prudent person would have done is a question of fact. The essence of what is claimed to constitute the driver's subsequent negligence here is his exercise of judgment as to whether, after having stopped the bus, he should keep it standing and make an investigation, or whether, in view of the increased screaming and the fact that he thought the bus was on something and that someone had said "Pull ahead," he should drive ahead 2 or 3 feet, as he did. Plaintiff says the driver had all the time in the world to make that decision because she had not yet been injured then. What the driver heard and thought at that instant indicated to the contrary. We think the trial court correct in considering the driver's judgment one that was required to be made under emergency conditions not shown to have been of his making and that for that reason it should not be subject to the speculation and hindsight of a jury as to what would appear, after mature reflection, to have been a better course to pursue to avoid injury to another. In point are Walker v. Rebeuhr, 255 Mich 204; Loucks v. Fox, 261 Mich 338. We also note in passing, though it is not urged in the briefs, that plaintiff's proofs do not sufficiently disclose the time and opportunity she had, after falling, to remove her foot from the path of the bus wheel to avoid injury, whether she did what she could have done in that respect, and, hence, whether she was free from contributory negligence which continued to operate as a proximate cause up to the instant of her injury, a prerequisite to the right to go to the jury on the theory of subsequent negligence on the part of defendant's driver. Under the circumstances the trial court did not err.

Judgment affirmed, with costs to defendant.

BUTZEL, C.J., CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.