Anderson v. Kearly

• Decision Date: 03 December 1945
• Docket Number: No. 21.,21.
• Citation: 312 Mich. 566,20 N.W.2d 728
• Parties: ANDERSON v. KEARLY.
• Court: Michigan Supreme Court

312 Mich. 566

20 N.W.2d 728

ANDERSON

v.KEARLY.

No. 21.

Supreme Court of Michigan.

Dec. 3, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Bay County; Carl H. Smith, Judge.

Action by Lewis Anderson, administrator of the estate of Donald Anderson, deceased, against James Kearly, administrator of the estate of Arnold R. Miller, deceased, for the death of plaintiff's decedent. Judgment for plaintiff after defendant's motion for judgment notwithstanding the verdict was denied, and defendant appeals.

Judgment affirmed.

Before the Entire Bench.

Otto & Otto, of Saginaw, and William J. Williams, of Bay City, for defendant-appellant.

Heilman & Purcell, of Saginaw, and Albert A. Smith, of Frankenmuth, for plaintiff-appellee.

SHARPE, Justice.

This is an action instituted by Lewis Anderson, administrator of the estate of Donald Anderson, deceased, against James Kearly, administrator of the estate of Arnold R. Miller, deceased, to recover damages arising out of the death of Donald Anderson.

At about the hour of 9:15 a. m., on February 22, 1942, plaintiff's decedent, Donald Anderson, was a passenger in a Ford car driven by Roland Whipple in an easterly direction on U.S. Highway No. 23 at a point approximately three miles north of the village of Au Gres, Michigan. The highway consists of a concrete slab 20 feet wide which is divided by a center line. At that time, it was dry and clear of snow. The day was fair. There were four people in the Ford car, namely, Roland Whipple and three Anderson boys. At approximately the same time, a Buick car was approaching from the east. This car was being driven by Arnold R. Miller and contained two other passengers, namely, Maude Miller, wife of Arnold R. Miller who was riding in the front seat beside the driver, and Mrs. Gilpin who was riding in the back seat.

The cars collided and after they ceased moving, the Ford car was on the south half of the highway, but facing in a westerly direction. The Buick car was on the south side of the highway at a distance of about ten feet east of the Ford car, with its front end out on the south shoulder and pointing in a southerly direction, and with its hind wheels resting near the southerly edge of the pavement. Both cars were badly damaged and as a result of the collision Dr. Miller, Donald Anderson, and Howard Anderson were killed. All of the debris, consisting of radiator fluid, oil and broken glass, was on the south side of the highway.

Plaintiff's decedent, Donald Anderson, was a minor of the age of 17 years. He lived and worked on a 178 acre farm leased and operated by his father, Lewis Anderson.

The cause came on for trial and at the close of plaintiff's proof, defendant moved for a directed verdict on the ground that there was no showing of negligence of defendant's decedent. The motion was taken under advisement under the Empson Act, Comp.Laws 1929, § 14531 et seq. Defendant then proceeded with his proofs at the close of which he renewed his motion for a directed verdict, which was again taken under advisement. The cause was submitted to the jury which returned a verdict for plaintiff of $3,000. Defendant made a motion for judgment notwithstanding the verdict which was denied and judgment entered. Subsequently, defendant made a motion for a new trial. This, also, was denied.

Defendant appeals and urges that plaintiff failed to show that defendant committed any acts of negligence; that the court erred in instructing the jury; and that there was not sufficient proof of plaintiff's damages.

The principal issue in this case is whether the motion for a directed verdict should have been granted. Plaintiff produced testimony showing the position of the cars after the collision and the debris, all of which was located on the south side of the highway, and that the right front of the Buick was damaged while the left front of the Ford car in which plaintiff's decedent was riding was damaged. Defendant urges that the physical facts do not explain where the collision took place, therefore, plaintiff did not establish a prima facie case, thus resulting in the trial court committing error in its failure to grant defendant's motion for a directed verdict made at the close of plaintiff's case. We are not in accord with this theory.

In Brown v. Arnold, 303 Mich. 616, 6 N.W.2d 914, 916, we said: ‘The facts we have recited were established by the testimony, and we have repeatedly held that a jury may draw reasonable and legitimate inferences from established facts. Negligence may be inferred from the facts and circumstances. Physical facts may justify a jury finding that defendant is guilty of negligence. Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863;Trent v. Pontiac Transporation Co., Inc., 281 Mich. 586, 275 N.W. 501. Negligence may be inferred from circumstances which place the case within the field of legitimate inferences from established facts. Fish v. Railway, 275 Mich. 718, 269 N.W. 568.'

Having in mind that upon a motion to direct a verdict against plaintiff, the testimony and all legitimate inferences which may be drawn from it most favorable of the opinion that plaintiff established a prima facie case.

Defendant also urges that the only eyewitness to the collision was one Richard Tremble who testified that the collision took place on the north side of the highway and that such testimony rebutted the prima facie showing that the collision took place on the south side of the highway. We have in mind that the testimony of this witness was impeached by a showing that he stated upon three different occasions that he was not present when the collision occurred. In Buttermore v. Faleris, 304 Mich. 294, 8 N.W.2d 72, 75, we said: ‘The credibility of a witness is the sole province of the jury.’ In the case at bar, the jury by returning a verdict in favor of plaintiff must necessarily have given no credit to the testimony of this witness. The jury had a right to disbelieve his testimony. The physical facts as controverted by the testimony of this witness presented a question of fact for the jury and we cannot say that their verdict was against the great weight of the evidence.

It is urged that the trial court was in error in instructing the jury as follows:

‘I charge you that under the law of this State, drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway, as near as possible. Now, if you find from the testimony that the...