Banzhof v. Roche

• Decision Date: 24 July 1924
• Docket Number: No. 3.,3.
• Citation: 228 Mich. 36,199 N.W. 607
• Parties: BANZHOF v. ROCHE et al.
• Court: Michigan Supreme Court

228 Mich. 36

199 N.W. 607

BANZHOF

v.ROCHE et al.

No. 3.

Supreme Court of Michigan.

July 24, 1924.

Error to Circuit Court, Wayne County; A. F. Marschner, Judge.

Action by Luella Banzhof, an infant, by George K. Banzhof, her next friend, against Terrance P. Roche and another. Judgment for defendants, and plaintiff brings error. Affirmed as to one defendant, and reversed and new trial granded as to the other.

Mr. Banzhof and defendant Roche were neighbors. Roche was the owner of a Dodge automobile. He also owned a trailer used in connection with it. Banzhof was the owner of a larger trailer which he occasionally loaned to Roche. On the occasion in question Roche had borrowed Banzhof's trailer. Banzhof's daughter Luella, the plaintiff, was a little over nine years old. She and Roche's daughter Mary were playmates. On the day in question the two girls were permitted to ride in the trailer the sides of which were about 16 inches high. On the trip the trailer came in collision with a truck owned by defendant company, the manner of the collision being in dispute, and the two girls were thrown out. It is claimed that plaintiff was injured, the extent being likewise in dispute.

In plaintiff's declaration numerous acts of negligence were charged against defendant Roche, but upon the trial plaintiff relied solely as against Roche upon the claim that it was negligence for him to permit plaintiff to ride in the trailer. Plaintiff's counsel called Roche under the statute for cross-examination and also produced his brother, who accompanied him on the trip, as a witness. Their testimony fully exculpated defendant Roche from any claim of negligence at the point of accident, and tended to establish negligence of the driver of defendant's truck. At the close of plaintiff's case both defendants moved for a directed verdict. The motion of defendant Roche was granted, and that of defendant company was denied. Defendant company through its counsel insisted in its defense that plaintiff and defendant Roche were acting in concert to fix liability on defendant company and testimony tending to sustain this charge was introduced. Defendant's counsel also over objection introduced in evidence certain provisions of an ordinance of the city of Detroit having reference to trailers, the material provisions being as follows:

‘All trailers must track within six inches of the preceding vehicle.

‘Couplings: Trailers. Trailers shall be attached to the preceding vehicle by means of a coupling. Two safety chains, one on each side of the coupling, must also be used. Both chains must be attached to the same part of the chassis as is the coupling. Each chain must be of sufficient strength to pull the trailer or trailers attached to it, when loaded with maximum capacity.'

And defendant's counsel developed that the trailer in question had no safety chains upon it. The driver of the truck of defendant company, not then in its employ, was also called as a witness. His testimony was that he was driving carefully at about 8 miles an hour, that he did not turn from his course or run into the trailer; that Roche passed him going at the rate of 15 to 18 miles an hour; that the trailer was ‘wobbling’ and that the wheel of the trailer ran into the wheel of the truck, causing the accident. Other testimony corroborating defendant's claim was produced. The jury rendered a verdict for defendant company.

Argued before CLARK, C. J, and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. G. Sweetman Smith, of Detroit, for appellant.

J. Nelson Pyle, of Detroit (Keena, Lightner, Oxtoby, Hanley & Crawford, of Detroit, of c...