Hart v. Warners

110 N.W.2d 632, 363 Mich. 527, 1961 Mich. LEXIS 485

• Court: Michigan Supreme Court
• Decided: September 21, 1961
• Docket: Docket 77, 78, Calendar 48,586, 48,587
• Status: Published

Opinions

Per Curiam.

These consolidated suits for negligence, one derivative from the other, were tried to> the court without a jury. The trial judge found for defendant and entered judgments accordingly. Plaintiffs appeal.

A bicycle ridden by an 8-year-old boy (plaintiff in the principal suit), proceeding in one direction along a rather narrow blacktop road, came into collision with an automobile defendant was driving-in the opposite direction. Whether at the time of collision the bicycle or the automobile was on the-wrong or slightly wrong side of the road was disputed. The center line was not marked. The point of impact of car and bicycle was shown photographically as being on the extreme left front and left-side of the car. There was testimony from which the trial judge could infer that the defendant was driving on his own side of the road at the time of and immediately prior to occurrence of the collision, and there was other proof from which the-trial judge could infer that defendant was, at the-time, driving on “about the middle of it.”

There also was testimony that the boy, just before the collision took place, “swerved to his left, right into the car.” The trial judge relied particularly on this testimony. Plaintiffs criticize his action in such regard as violative of the sudden emergency doctrine and say that fear of being hurt by the oncoming car was the cause of the swerve if in fact the boy did swerve as testified.

Questions of fact only were presented before the circuit judge. He resolved them. His finding thereon cannot be pronounced contrary to the dear-preponderance of the evidence. The judgments entered below must therefore be affirmed, with costs to> defendant.

Dethmers, C. J., and Carr, Kelly, Black, and Kavanagh, JJ., concurred.