Meier v. Holt

80 N.W.2d 207, 347 Mich. 430, 1956 Mich. LEXIS 276

Opinions

Boyles, J.

(dissenting in part). This is an appeal by defendant Joseph W. Holt from 4 separate judgments entered for 4 plaintiffs in consolidated cases tried by Judge Breakey in Washtenaw county without a jury. Each of the 4 plaintiffs, Frank Meier, Margaret Toth, Stephen Toth (and his insurance carrier

Footnotes

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*), and Stephen Toth.,. Jr., a minor (by.next friend), filed separate suits against defendants Joseph W. Holt and one Ray Caswell.for damages resulting from the claimed negligence of both of said defendants in the operation of their 2 automobiles on the public highway. The suits having been occasioned by the same accident, in which the motor vehicles of both defendants were involved, these cases were consolidated for trial, after the pretrial hearing, but 4 separate judgments were entered by the court. Defendant. Joseph W. Holt appeals. Defendant Ray Caswell has not appealed.

-At the conclusion of the proofs the court filed a comprehensive opinion finding the facts, and entered judgments as follows: For Frank Meier, $5,000; for Margaret Toth, .$8,500; for Stephen Toth, $4,-250;† and for Stephen Toth, Jr., $100. Each of- the judgments was entered against .both defendants, Ray Caswell and Joseph W. Holt, “jointly and severally.” ...

. While counsel for the respective parties in their briefs have added some facts extending the findings of fact in the opinion filed by the trial court, no complaint has been made as to their inaccuracy. ■ We agree with the trial court that, in substance, the facts are as follows:. • . • y

These cases .arose out. of 2 automobile . collisions about 6 o’clock on the morning of May. 15, 1946, on US-112 near Saline.- ..The plaintiffs Stephen Toth, Stephen Toth, Jr., Margaret Toth, and Frank Meier were in the Toth automobile being driven by Stephen Toth. The highway involved was 2-lane and paved, and Toth was in the south lane, going in an easterly direction. The atmosphere was foggy. Stephen Toth testified that he could see approximately 30 to 40 feet ahead, and had his lights on when he first saw the headlights of the Caswell car coming toward him, in his (Toth’s) south lane of traffic, on the wrong (south) lane of the highway; that he (Toth) was on the right hand side of the highway; that there was other traffic proceeding west, while he (Toth) was proceeding east; that he (Toth) made a half turn of the steering wheel, stepped on the brake, could not judge how fast the oncoming (Caswell) ^ar was traveling, that he (Toth.) was traveling approximately 10 to 15 miles per hour; that the front end of the Toth car and the Caswell car collided and that the Toth car came to a stop crosswise of the highway; that the Toth car had sat there probably a half minute before another collision took place. The second collision was by the car being driven by defendant Joseph W. Holt, driving in an easterly direction, in the same direction as the plaintiffs’ car. Defendant Holt testified that when he got approximately 20 feet from the Toth car which was across the highway, he first saw it; that he didn’t stop, that he couldn’t stop within the 20 feet. He was asked on cross-examination if there was nothing except the fog to interfere with his view ahead and he answered “That’s right.” He was further asked whether he was driving too fast to stop, and he answered “That’s right.”

Defendant Caswell testified that he was proceeding in a westerly direction on the highway and that the Toth car was 200 to 300 feet away when he first saw it. He testified that he (Caswell) went into the south lane attempting to pass some trucks which were “just crawling,” westbound, when he first saw tlie Toth automobile. He testified that he didn’t know how fast he was traveling — that it wouldn’t be any more than 25 miles per hour; that he could have put on the brakes and pulled in back of the trucks if he had thought, but that he decided to cross the highway; that he was afraid of a collision. He further testified, in substance, that the 2 haulaways —that is, the 2 trucks to which reference has been made — were close together; that he tried to get in between them and couldn’t. Defendant Caswell, by admitting that he was in the wrong lane, that he had seen the Toth car 200 to 300 feet away (although it didn’t have lights on, according to his claim), and that he tried to get in between the 2 trucks but couldn’t make it, has established his negligence on his own testimony. However, he has not appealed from the judgments.

The testimony of the defendant Holt, that he was going too fast to stop when he saw the Toth car, is-enough to establish his negligence.* There is no substantial testimony to show that the plaintiff driver was negligent and the court properly held that he was free from contributory negligence.

"Where a law case has been tried by the court without a jury, we do not reverse the court’s findings of facts unless the testimony clearly preponderates in the opposite direction. Eggebeen v. Red Top Cab Company of Grand Rapids, 334 Mich 490; Meyers v. Fort, 344 Mich 312. On our review of the record here, we agree with the trial court. The proofs support the court’s conclusion that the defendant Holt was guilty of negligence which was one of the proximate causes of plaintiffs’ injuries. Waterstradt v. Lanyon Dock Co., 304 Mich 437.

Appellant challenges the joint and several judgments against him, claiming that even if his .negli ge'nce were conceded, the negligence of defendant Caswell was the proximate cause of plaintiffs’ injuries. Appellant relies on Frye v. City of Detroit, 256 Mich 466. However, if the proofs establish (as we find they do) that defendant Holt was guilty of negligence, under the circumstances shown, the negligence of Caswell would not prevent a recovery of damages against Holt. There could be, and were, 2 proximate causes of plaintiffs’ injuries. DeWitt v. Gerard, 274 Mich 299; Gleason v. Hanafin, 308 Mich 31; Brackins v. Olympia, Inc., 316 Mich 275 (168 ALR 890).

The only other question raised by appellant for reversal is that the judgments for Frank Meier, Stephen Toth and Margaret Toth .were grossly excessive.

| Frank Meier suffered a leg fracture requiring pegging and bone graft; the leg was in traction nearly 5 months, then required a steel brace for 6 months; he was hospitalized for 8 months, later had difficulty in walking, and lost over 1 year of work, during which time he suffered pain. Margaret Toth had 8 broken ribs, crushed chest, fractured elbow, permanent injury to elbow, was still being treated for injuries 6 years later, suffered considerable pain. Stephen Toth also suffered injuries about the face, head, eyes, requiring numerous stitches, his left hip was injured and he had a fracture of the wing of the left sacrum; he was on crutches for 3 months; suffered pain. The judgments were within the range of the proofs, and not excessive. Denny v. Garavaglia, 333 Mich 317; Vink v. House, 336 Mich 292; Bennett v. Hill, 342 Mich 754.

Judgments should be affirmed.

Said insurance carrier filed a separate declaration claiming damages based on a subrogation assignment from Stephen Toth under his insurance policy. Objection - having been raised that this was a void splitting of á cause of action, the court held thht'by the consolidation and by hearing the claims together, this did not result.'in a prejudicial splitting of the claim. In his brief appellant: expressly abandons his claim .that the plaintiff Stephen Toth had split His cause of action. „

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In this same, judgment, also $1,018.52-against the defendants, in favor of the plaintiff insurance carrier. This amount has not been questioned.

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CLS 1954, § 257.627(a) (Stat Ann 1952 Rev § 9.2327[a]).