Zeitz v. Mara

• Decision Date: 05 September 1939
• Docket Number: Nos. 88,89.,s. 88
• Parties: ZEITZ v. MARA et al. (two cases).
• Court: Michigan Supreme Court

290 Mich. 161

287 N.W. 418

ZEITZ

v.MARA et al. (two cases).

Nos. 88, 89.

Supreme Court of Michigan.

Sept. 5, 1939.

Actions by Albert R. Zeitz and by Albert R. Zeitz, Jr., by Albert R. Zeitz, Sr., his next friend, against Albert R. Mara, William H. Jones, and Nick Mara, for damages arising out of an automobile collision. The actions were consolidated for trial. Judgments for defendants, and plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Wayne County; Homer S. Ferguson, Judge.

Argued before the Entire Bench.

Hugh G. Allerton and Louis Rosenzweig, both of Highland Park, for appellants.

Maurice Miller, of Detroit, for appellees Albert R. and Nick Mara.

BUSHNELL, Justice.

Plaintiffs, whose actions were consolidated for trial, appeal from a judgment entered upon the verdict of a jury of no cause of action in favor of defendants and the refusal of the court to grant plaintiffs' motion for a new trial. On July 16, 1937, plaintiff Albert R. Zeitz, Jr., then 19 years of age, drove a car owned by his father, plaintiff Albert R. Zeitz, Sr., with his consent, from Highland Park to Lakeville for the purpose of going swimming with some young people who accompanied him. While there they met defendant Albert R. Mara and some others whom they had previously known. About 10:00 p. m., when the Zeitz car left Lakeville, Mara and his party followed. South of Rochester, Mara passed Zeitz and Zeitz traveled behind Mara until the accident. Just before crossing the Fourteen Mile or Clawson Road, which intersects the Rochester road, Zeitz noticed a car coming from the south, which he learned afterwards was driven by defendant Jones. Zeitz, according to his testimony, crossed the intersection at a speed of between 30 and 35 miles per hour, afterwards increasing to 40 and 45 miles per hour. A collision occurred south of the intersection between the Mara and Jones cars. The Jones car continued in a northerly and westerly direction across the center line of Rochester Road, where it collided head-on with the Zeitz car, some of the occupants being badly injured, one of them dying as a result of the accident. The consolidated trials were begun on November 3, 1938, and were concluded in the afternoon of Thursday, November 10th, whereupon the following colloquy took place between the court and jury:

‘The Court: Members of the jury, is there anyone who can't stay tonight for a while? Anybody that--

‘Juror: How late would that be?

‘The Court: Do you feel you may stay? What about you?

‘Juror: I can't stay.

‘Juror: What do you mean by tonight?

‘The Court: I mean until five or six o'clock.

‘Juror: I can stay but not after six.

‘The Court: You see, we are facing a holiday, members of the jury, and then we are facing a Saturday, and we are facing Sunday. That is our trouble with this case. That is why I suggested a limit of 45 minutes and you would have had some time, but lawyers go by calendars and not by clocks. Well, I think I will charge you tonight. At least I will tell you what the law is, tonight.

‘(Charge of the Court)

‘(Jury deliberated a while)

‘Jury called into court room at 5:55 P. M.

‘The Court: Members of the jury, have you agreed upon a verdict? If so who will speak for you?

‘Juror: We have not.

‘The Court: Is there any chance in the next few minutes, members of the jury?

‘Juror: Not within the next few minutes. Probably in an hour or hour and a half.

‘The Court: Is there anyone who can't stay half an hour. I don't want to force a verdict here. I want you to have your time and attention to it. Is there any person that does not want to stay? Be frank about it, now. Well, I will do this with you, members of the jury. If you will go out and decide this case tonight, if you can decide it, if not you can go hom to Monday morning, and for every hour that you stay after 4:15 you do not have to return here for that many hours after 9:30 on Monday morning. I will do that with you. You won't lose any time. So you can go out again.’

Appellants claim there was no testimony on which the jury could properly find plaintiffs guilty of contributory negligence and therefore, the motion for new trial should have been granted. Whether or not plaintiffs' action in crossing the intersection of the Fourteen Mile Road in the Village of Clawson at a speed greater than that permitted by the village ordinance, and in following the Mara car at a speed of 40 to 45 miles per hour at a distance of about 200 feet, was contributory negligence is one upon which reasonable men may fairly arrive at different conclusions, and was, therefore, a question of fact for the jury. Pulford v. Mouw, 279 Mich. 376, 272 N.W. 713.

It is also argued that the jury's verdict was contrary to the overwhelming weight of the testimony. An examination of the record does not warrant this conclusion.

Claimed errors pertaining to the court's refusal to grant plaintiffs' motion for a new trial, based upon another jury's answer to a special question, the alleged speculation of witnesses as to conclusions drawn from their examination of photographs, and...