Alley v. Klotz, 53.

CourtSupreme Court of Michigan
Citation31 N.W.2d 816,320 Mich. 521
Docket NumberNo. 53.,53.
PartiesALLEY v. KLOTZ et al.
Decision Date05 April 1948

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Jackson County; H. D. Boardman, judge.

Action by James Alley against W. E. Klotz and another for injuries sustained by plaintiff in automobile collision. From judgment for plaintiff, the defendants appeal.

Affirmed.

Before the Entire Bench.

Rosenburg, Painter & Navarre, of Jackson, for appellants.

Felix F. Best, of Jackson (Kleinstiver & Anderson, of Jackson, Michigan, of counsel), for appellee.

CARR, Justice.

Plaintiff brought suit in circuit court to recover damages for injuries sustained by him in a traffic accident occurring about 6:30 in the evening of February 11, 1946, on a highway referred to in the record as ‘old U.S. 12, approximately two miles east of the city of Jackson. Immediately prior to the accident plaintiff was driving in an easterly direction on said highway, his intended destination being the Disabled American Veterans Club, located on the north side of the road. For purposes of convenience and brevity said place is hereinafter referred to as the club. A car driven by one Gordon Barcalow was a short distance behind plaintiff. At the place in question the highway was approximately 16 feet in width and was paved with black-top. No claim is made that the condition of the surface of the pavement was a contributing factor to the accident.

On each side of the club there was a driveway, the one on the east having two entrances from the road forming a Y in which was located a telephone pole. Plaintiff intended to enter the west entrance of the east driveway. While endeavoring to do so his car was struck by an automobile driven by defendant Dent and owned by defendant Klotz. The answer concedes that said automobile was being driven with the knowledge and consent of the owner.

On the trial before a jury it was the claim of the plaintiff that defendant Dent was guilty of negligence in failing to keep a reasonable and proper outlook for the safety of others on the highway, and in failing to operate his automobile in such manner as to be able to stop the same within the assured clear distance ahead. Defendants denied negligence on the part of Dent and insisted that plaintiff's failure to exercise due and proper care for his own safety was the proximate cause of the accident. Defendants' motion for a directed verdict, made at the conclusion of plaintiff's case and renewed following the introduction of defendants' proofs, was taken under advisement by the court under the provisions of the Empson act.1 The case was then submitted to the jury, by which a verdict in the sum of $7,000 was returned. Defendants' motion for judgment notwithstanding the verdict was denied. Their motion for a new trial was also denied, on condition, however, that plaintiff consent to a remittitur in the sum of $2,000. This was done and judgment was entered for the plaintiff in the sum of $5,000. Defendants have appealed.

On behalf of defendants it is contended that the trial court erred in denying the motion for judgment notwithstanding the verdict. In order to recover damages the burden of proof rested on the plaintiff to establish that defendant Dent was guilty of negligence constituting the proximate cause of the accident and that he was himself free from contributory negligence. It was the duty of the trial court, in passing on the issues presented by the motion, to construe the evidence in the light most favorable to the plaintiff. Gayden v. Arabais, 292 Mich. 651, 291 N.W. 42;Butzin v. Bonk, 303 Mich. 522, 6 N.W.2d 765;Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728.

The witnesses are not in agreement as to how the accident occurred. Plaintiff, testifying in his own behalf, stated that he approached his destination at a speed of approximately 25 miles per hour; that he was aware that another automobile was following him at a distance of approximately 150 feet; and that west of the west driveway to the club he stepped on the brake three or four times in succession for the purpose of indicating by his rear light his intention to turn, thereby reducing his speed to approximately 12 miles per hour. Plaintiff's testimony in this regard is corroborated by that of his witness Barcalow. Whether Barcalow also reduced his speed is not altogether clear. Plaintiff further testified that at a distance of approximately 70 feet from the west entrance to the east driveway he started to turn to his left, and that as he did so he looked over his left shoulder through the side windows of his car for the purpose of observing any traffic that might be approaching from the west on the north side of the road. It was his claim that he could see west for a distance of approximately 300 feet, that he noted the Barcalow car approximately 125 feet behind him, and that he did not see the defendants' automobile. He further claimed that prior to turning he made observations of the highway behind him by means of his rear view mirror, and that having looked to the west after commencing his turn across the north half of the highway, he looked also to the east for the purpose of observing any traffic that might be approaching from that direction. He testified to such a vehicle, claiming that it was approximately four blocks away at the time of his observation. Plaintiff stated that he did not see defendants' car prior to the impact. On cross-examination he further testified that after he started to turn he proceeded a distance of approximately 12 to 20 feet before he was struck. In view of the point where the impact actually occurred, such testimony is inconsistent with plaintiff's claim on direct examination that he began to turn 70 feet west of the west entrance of the east driveway.

Gordon Barcalow, testifying in plaintiff's behalf, stated that the impact occurred after plaintiff's car, with the exception of the rear bumper, had practically cleared the pavement on the north side of the road. In the main he corroborated the claims of the plaintiff as to the manner in which the latter was driving. He observed the signal given by plaintiff by means of the rear light, and the turning of plaintiff's car toward the north. He claimed that he made observations for the purpose of determining whether there was any automobile behind him and that he saw none. According to his testimony he did not see the car driven by defendant Dent until it was passing him. Concerning this matter he said: ‘A car passed me. And at that time Mr. Alley's car was practically off the pavement and this other car his him.’

Whether the witness meant to say that plaintiff's car was actually leaving the pavement at the time defendants' automobile was passing is not clear, expecially in view of his further testimony as follows: ‘I looked in the back mirror when the car in front of me gave his signal. I looked in the back mirror to see if I could see a car. There was no car back there. But, just as he started turning, this car got aside of me, and I noticed him pass me, and that is all.’

The testimony of defendant Dent is not in accord with that of plaintiff or of Barcalow. It was his claim in substance that he did not see plaintiff's automobile until he turned out upon the north side of the highway in order to pass the Barcalow car; that he did not see any signal indicating that plaintiff intended to turn to the left; that he was some 30 feet past the Barcalow car before noting that plaintiff was actually turning; that he immediately applied his brakes, locking the wheels of his car; and that he was unable to stop or otherwise avoid the impact. He further claimed, in substance, that he was exercising due and proper care in the operation of his car.

An apparently disinterested witness testified that skid marks on the road, following the accident, were left by all four wheels of defendants' car, and that they extended approximately 25 feet in an easterly direction to the point of impact. This testimony and other proofs introduced in plaintiff's behalf indicated that defendant Dent was nearer to plaintiff's automobile at the time he applied his brakes and locked his wheels than his own testimony suggested. As a result of the impact, plaintiff's automobile was thrown on its right side against the telephone pole in the Y, while defendants' car proceeded on, leaving the highway and making a U turn in an adjacent field. It is apparent that, notwithstanding the application of the brakes, defendants' car struck plaintiff's automobile with great force.

Under the conflicting testimony the question of defendant Dent's negligence was for the jury. Bearing in mind that for the purpose of determining the issues here the evidence must be interpreted as strongly as possible in plaintiff's favor, it cannot be said that the proofs were not sufficient to establish a prima facie showing of a failure by said defendant to keep a reasonable and proper outlook for the safety of others on the highway, and also a failure on his part to drive in such a manner that he could stop within the assured clear distance ahead. Pavela v. Tryloff, 251 Mich. 110, 230 N.W. 912;Pearce v. Rodell, 283 Mich. 19, 276 N.W. 883;White v. Vandevelde, 284 Mich. 669, 279 N.W. 899.

This brings us to a consideration of the question whether, as a matter of law, plaintiff's proofs failed to show that he was free from contributory negligence. It was unquestionably plaintiff's duty to keep a proper outlook for his own safety, and especially to make reasonable observations, before undertaking to turn into the entrance to the club premises, for the purpose of determining that the movement could be made in safety. It was his duty also to give a timely signal of his intention by means of the mechanical operation of his rear light or by extending his arm from the left side of his car. It was his duty in other words to comply with the statutory requirements in this regard, as stated by the trial court in his...

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