Toman v. Checker Cab Co. , 306 Mich. 87 ( 1943 )

This case involves plaintiff's claim for damages resulting from an automobile collision which occurred about 3 o'clock on the morning of September 25, 1940, at the intersection of Woodward avenue and Vernor highway in the city of Detroit.

Plaintiff, Martin Toman, is a vegetable farmer, operating a farm at Milan, Michigan. On the day in question, he was driving to the city of Detroit with a load of vegetables to be sold at the Eastern Market. In Detroit, he proceeded eastward on Vernor highway. Vernor highway is intersected by Woodward avenue, a north and south street, which at this point is approximately 90 feet wide. Plaintiff alleged in his declaration and, at the trial, testified that at the intersection of Vernor highway and Woodward avenue, the green traffic light was in his favor; that he proceeded to cross Woodward avenue and had almost crossed the intersection when he was struck by defendant Fred Lee who was traveling at an excessive rate of speed in a northerly direction on Woodward avenue against the red light.

As a result of the collision, plaintiff's truck was overturned and damaged, the load of vegetables was destroyed, and plaintiff was injured. The record shows that plaintiff was hospitalized for five days, spent two weeks in bed at the home of his brother-in-law in Detroit and two months thereafter at his own home in Milan; and that he suffered partial disability for about 18 months after the accident.

Defendant Fred Lee filed an answer to plaintiff's declaration and also filed a cross declaration in which he claimed damages to his automobile in the sum of $350.35 together with the loss of the rental value of the same for a period of seven days.

The cause was tried before a jury who returned a verdict for plaintiff in the sum of $1,000. Defendant Fred Lee appeals and contends that the trial court was in error in instructing the jury on the issues of excessive speed, inability to stop within the assured clear distance ahead, defective brakes, as provided by the ordinance of the city of Detroit, and timely and adequate warning of approach; that it was error to instruct the jury that the ordinance of the city of Detroit provided that the speed limit is 25 miles per hour in business districts; that it was error to admit evidence that plaintiff had never been hurt before in an accident; that it was error to submit to the jury the question of future pain and suffering; that it was error to submit to the jury an item of damages arising out of the loss of growing crops; that it was error to permit the impeachment of defendant Lee upon a collateral matter; and that the verdict was excessive and contrary to the great weight of the evidence.

It is a familiar rule of law that the charge as a whole must be read to determine whether there is error or not. See Rogers v.Youngs, 252 Mich. 420. In the instructions to the jury, the trial court quoted quite freely from the city ordinance relating to speed, stop signals, green and red lights, brakes and right of way. While the ordinance was not technically introduced and admitted in evidence, yet it was declared upon by plaintiff and admitted by defendant in his answer to plaintiff's declaration. It is the rule in this State that matters conceded by the pleadings are a part of the record. See Detroit Trust Co. v. Hockett, 278 Mich. 124; Miller v.General Motors Corp., 279 Mich. 240. Under such circumstances, it was not necessary to formally introduce the ordinance in evidence.

It is urged that the trial court was in error in giving the following instruction:

"With reference to permanent injuries, I instruct you that there is no testimony in the case that the plaintiff has sustained any permanent injuries. The only testimony given you is that he has pains in his head, arm and his side and ribs. Now, there is no definite proof or testimony that he is going to be permanently injured in any way. There has been no testimony by any doctor of broken bones or anything like that, so that if you believe he is suffering any future pain, you have the right to consider what he is entitled to — a reasonable amount for that — if you feel he is suffering any future pain."

While the declaration alleged that plaintiff suffers and will continue to suffer excruciating pain, yet there was no evidence introduced relating to future pain and suffering, nor was any instruction given concerning its present worth. Plaintiff urges that the use of the words "future pain" may have been a stenographical error; and that, at any rate, their use is not reflected in the verdict.

In Nickels v. Hallen, 247 Mich. 291, we held it was error for the trial court to give the jury an erroneous instruction relative to the rule for determining the present worth of prospective damages. In the case at bar, the trial court, by her instructions, permitted the jury to assess damages for future pain and suffering when there was no foundation for such an item of damages. We cannot say that this erroneous instruction was not reflected in the verdict.

For the error pointed out, the judgment should be reversed and a new trial granted. Other errors have been assigned as reasons for a new trial, but in view of our holding we do not find it necessary to discuss them. Defendant Fred Lee should recover costs.

WIEST, J., concurred with SHARPE, J.