Sanderson v. Barkman

249 N.W. 492, 264 Mich. 152, 1933 Mich. LEXIS 965

• Court: Michigan Supreme Court
• Decided: June 29, 1933
• Docket: Docket No. 79, Calendar No. 35,653.
• Status: Published

Opinion

Potter, J.

Plaintiff sued defendants to recover damages for injuries sustained by reason of defendants’ negligence. Plaintiff was struck by defendants’ automobile while he was standing on a public highway. Plaintiff was a witness in his own behalf. At the conclusion of his testimony, defendants moved for a directed verdict because of plaintiff’s contributory negligence. Such verdict was directed. Plaintiff subsequently made a motion for a new trial, which motion was denied. Plaintiff appeals, claiming the court was in error in directing a verdict before plaintiff rested his ease, before hearing the testimony of plaintiff’s corroborating explanatory witnesses, in overruling plaintiff’s motion for a new trial, in holding plaintiff was guilty of contributory negligence as a matter of law, and in holding plaintiff bound to see and anticipate the approach of traffic on the wrong side of the road, obscured from plaintiff’s range of vision.

Plaintiff, just prior tó the accident, was riding on a kerosene tractor coupled with a bean thresher, going south on the right-hand side of the traveled portion of trunk line highway M-47. Plaintiff left the tractor on the left side thereof, at a point two and one-third feet west of the center of the highway, having previously looked both ways and feeling assured of no danger, whereupon he was struck by defendants’ automobile on the wrong side of the highway, driven at a high rate of speed, not under control, lay a driver who did not look or observe due care.

The rule is well settled that one driving an automobile upon a public highway should drive on the right-hand side of the center of the traveled portion of such road. One who drives on the wrong side of the road assumes the liability for so doing. Plaintiff was on the right side of the road and defendant was on the wrong side; It is not contributory negligence, as a matter of law, for plaintiff to be where he had a right to be. Contributory negligence cannot be imputed from plaintiff’s failure to anticipate defendants’ unlawful acts.

Plaintiff was not bound to anticipate defendant would drive at an excessive rate of speed on the wrong side of the highway. Lawrence v. Bartling. & Dull Co., 255 Mich. 580; Wood v. Priborsky, 259 Mich. 556; Willis v. Tucker, 261 Mich. 83; Travis v. Eisenlord, 256 Mich. 264.

If it was necessary for defendants to drive upon the wrong side of the highway, in violation of the provisions of the statute, it was incumbent upon defendants to show the circumstances of such necessity. The question of plaintiff’s contributory negligence was for the jury. Dreyfus v. Daronco, 253 Mich. 235.

Judgment reversed. New trial granted.

McDonald, C. J., and Clark, Sharper North, Fead, Wiest, and Butzel, JJ., concurred.