Arnold v. Krug

• Decision Date: 21 May 1937
• Docket Number: No. 85.,85.
• Citation: 273 N.W. 322,279 Mich. 702
• Parties: ARNOLD v. KRUG.
• Court: Michigan Supreme Court

279 Mich. 702

273 N.W. 322

ARNOLD

v.KRUG.

No. 85.

Supreme Court of Michigan.

May 21, 1937.

Action by Albert Arnold, administrator of the estate of Alice Arnold, deceased, against Dougald Krug. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.Appeal from Circuit Court, Tuscola County; Louis C. Cramton, judge.

Argued before the Entire Bench.

Orr & Orr, of Caro (Otto, Holland & Otto, of Saginaw, of counsel), for appellant.

Maurice C. Ransford, of Caro, for appellee.

FEAD, Chief Justice.

M-81 is a state trunk line payed highway running east and west. Near Cass City it is intersected by a north and south highway, called Cemetery road. South of the intersection, Cemetery road is very little traveled, is rough, with grass growing between the wheel tracks, and runs about 80 rods to a blind end. A man who traveled the road for years, sometimes every other day, to care for stock, said he had seen only one vehicle on it in his life and that was during the dry summer season.

On the west side of Cemetery road and close to the intersection is a high embankment, so travelers approaching from the south and the west cannot see each other until within 30 or 35 feet of the center of the intersection.

October 15, 1935, Alice Arnold, about seventeen years old, was riding in a car driven by Leslie Doerr. They drove south on Cemetery road, turned around, came back, and when they reached the intersection Doerr did not stop or look to the left, but ran into the intersection at 15 miles per hour, and made so short a turn to the left that he was stuck by defendant's truck when his car was west of the center line and only his front wheels on or north of the center.

Wallace, driving defendant's truck, was familiar with the intersection. He approached it from the west at 45 miles per hour, did not slacken speed, did not see the Doerr car until it darted out upon the pavement, applied his brakes when 20 to 25 feet from the Doerr car, and swung to the left to avoid it, but struck the car on the left side between the wheels.

Alice Arnold was injured, lived in a partially paralyzed and semiconscious condition for about a month, and died from the injuries. Defendant appeals from judgment for plaintiff.

At the conclusion of the proofs, both parties moved for directed verdict. The court thereupon found that Wallace was not guilty of negligence in turning his truck to the left, because that act was done in an emergency, but that he was guilty of negligence in failing to slacken his speed as he approached the crossing.

The practice upon requests by both parties for directed verdict does not seem to be entirely clear to the profession and we take this opportunity to state it.

Where, without reservations, both parties ask for directed verdict, the court may determine the case and need not submit it to the jury, even though there be room for conflicting inferences from the testimony. Culligan v. Alpern, 160 Mich. 241, 125 N.W. 20;Germain v. Loud, 189 Mich. 38, 155 N.W. 373;Kyselka v. Northern Assurance Co., 194 Mich. 430, 160 N.W. 559;City Nat. Bank v. Price's Estate, 225 Mich. 200, 196 N.W. 429;Sterling Cork & Seal Co. v. Kling Brewing Co., 228 Mich. 566, 200 N.W. 142;People's Sav. Bank of Saginaw v. Pere Marquette Railway Co., 235 Mich. 399, 209 N.W. 182.

When, in addition to his motion to direct, a party presents requests to charge the jury, it negatives his intent to waive the right to have a jury pass upon the case; and, if his motion to direct is denied, he is entitled to go to the jury on any proper issue of fact. Kane v. Detroit Life Ins. Co., 204 Mich. 357, 170 N.W. 35;Burkheiser v. City of Detroit, 270 Mich. 381, 259 N.W. 125.

It follows also that one may reserve his right to go to the jury, on denial of his motion to direct, by any definite claim to the court to that end, made upon the record. The reservation need not be by written request to charge.

Possibly some of the confusion may have been caused by the original acceptance of the rule by this court without discussion of its extent and underlying principle. To clarify the situation, we adopt the statement in 18 A.L.R. 1433 and 69 A.L.R. 634, which is sustained by the weight of authority, as follows: ‘* * * where each of the parties to an action requests the court to direct a verdict in his favor, and makes no request that the jury shall be allowed to determine any question of fact, the parties will be presumed to have waived the right to a trial by jury, and to have constituted the court a trier of questions both of law and of fact.’

There is a dispute between defendant and the court as to whether the former preferred a request to charge on the subject of emergency. But, as the court held the point in defendant's favor, he cannot complain of it.

The case, therefore, is presented upon the issue whether the court erred in finding defendant guilty of negligence as a matter of law or of fact and law.

Defendant, being on a trunk line highway, had the right of way. This did not excuse him from exercising care. But, as was said by Mr....