Diamond v. Holstein

127 N.W.2d 896, 373 Mich. 74, 1964 Mich. LEXIS 178

• Court: Michigan Supreme Court
• Decided: May 4, 1964
• Docket: Calendar 58, Docket 50,320
• Status: Published

Opinions

Dethmers, J.

Plaintiff, a passenger in a northbound automobile driven by her husband, was injured in a T-intersection collision with a westbound automobile driven by defendant Holstein, owned by defendants Erlandson and occupied by Mrs. Erlandson as a passenger. Plaintiff sued for resultant damages. Decision on plaintiff’s motion, made at the conclusion of the proofs, for directed verdict as to liability was reserved. Judgment on jury verdict of no cause for action entered in favor of defendants after plaintiff’s motions for directed verdict and judgment non obstante veredicto were denied. Plaintiff appeals.

Defendants drove west on a road which ended at the intersection and there undertook to turn south. Plaintiff’s automobile came from the south over the crest of a hill 200 feet south of the intersection. In the area where the accident happened both roads were gravel or dirt, there were no stop or other traffic signs or signals, and neither road was favored over the other. The roads were covered with ice and snow. The line of vision between them was obstructed or restricted by snow banks 3 feet high and by brush and trees. Defendant driver admitted that he did not see the car in which plaintiff was passenger before the impact. He testified that as he came to the intersecting road he stopped 10 to 15 feet from it, looked to his right and left and there was nothing coming, that he then started np gradually, to make a left turn, still could see nothing coming from his left, that he had difficulty in gaining traction on the ice and his car was moving slowly with the wheels spinning, and that if it had not been for the ice he would have been able to escape the other car. He also admitted that he had entered a plea of guilty to a charge of unsafe driving before a justice of the peace in connection with this accident.

Plaintiff claims she was entitled to a directed verdict of liability because of defendant driver’s admission of not having seen her car until time of impact and also, apparently, because of his guilty plea to the traffic violation charge. There was conflict in the testimony as to the speed of plaintiff’s car when and after it came over the crest of the hill. Some testimony, as already noted, indicated that defendant driver stopped, looked, entered the intersection when no car was in sight to the south, and was struck because the plaintiff’s car came at excessive speed and failed to accord defendant’s car, first in the intersection, the statutory right-of-way to which it was entitled because it had come from plaintiff’s right. Testimony in the record discloses questions of fact for the jury as to how the accident happened. To paraphrase and amplify what this Court said in Todd v. Simonis, 370 Mich 342, the jury here would have been entitled to believe from the proofs in this case, (1) that plaintiff’s car was behind the hill and not within defendant driver’s range of vision when he stopped and then started into the intersection, (2) that plaintiff’s car covered the distance from a point beyond the crest of the hill to the point of impact more quickly than defendant driver could reasonably be required to expect it would on the icy road because it was traveling at an excessive or unsafe speed, (3) that inasmuch as he was coming from the right and reached the intersection when no car was within sight 200 feet to the south he might properly rely on the assumption that any possible driver coming from the left would accord him the statutory right-of-way, and (4) that had defendant driver, when entering the intersection, seen plaintiff’s car coming’ over the top of the hill at such unsafe speed it already would have been too late for him to do anything other than he did do to avert the accident and, hence, his negligence, if any, in failing to see plaintiff’s car earlier was not a proximate cause of the accident. This does not make out a case against defendant driver of negligence which was a proximate cause of the accident as a matter of law. As for the guilty plea in the criminal case, the plea could be considered as evidence of negligence, and it was received into evidence and was before the jury for such consideration, but it was not conclusive thereof so as to entitle plaintiff to a directed verdict as to liability or an instruction that defendant driver was guilty of negligence which was a proximate cause of the accident as a matter of law. Anders v. Clover, 198 Mich 763. The trial court did not err in declining to direct a verdict of liability in favor of plaintiff.

Did the court err, as plaintiff contends, in instructing the jury with respect to the assured-clear-distance-ahead statute, CLS 1956, § 257.627, as amended by PA 1957, No 190 (Stat Ann 1957 Cum Supp § 9.2327) ? If, as plaintiff’s driver claims, he was traveling at only 25 to 35 miles per hour and defendant’s car suddenly darted into the intersection only about 10 or 15 feet ahead of plaintiff, leaving-plaintiff’s driver unable to avoid striking defendant’s car, there would be merit to plaintiff’s contention. If, on the other hand, testimony and reasonable inferences therefrom are that defendant’s car was entering the intersection slowly before or when plaintiff’s car was coming- over the hill 200 feet away at a speed such that plaintiff’s driver could not bring it to a stop before reaching the intersection, then violation of the statute was a question properly to be submitted to the jury. Hoag v. Fenton, 370 Mich 320; Cole v. Barber, 353 Mich 427. There having been a dispute in testimony in those respects, it was proper to give the charge.

Error is also claimed in that the court instructed the jury that defendants had the burden of proof as to the negligence of plaintiff’s driver. The court already had told the jury that any negligence it might find as to him was not chargeable to plaintiff as a passenger. After the jurors had retired to consider the case the court recalled them and the following occurred:

“The Court: Good morning, ladies and gentlemen of the jury. The court on its own initiative wishes to correct the mistake it made yesterday in its charge to you as to the law.

“The court charged you that the burden of proof as to the negligence of plaintiff’s driver was on the defendants in this case. That is erroneous and must be disregarded by you, because in this case there is no issue of the contributory negligence of plaintiffs.”

Counsel for both sides expressed their approval at the time. The correct law had been stated before and was re-emphasized after the making of the statement of which complaint is made. Considering the charge in its entirety, reversible error did not occur.

Affirmed. Costs to defendants.

Kelly and O’Hara, JJ., concurred with Deth-MERS, J.