Bramer v. Ames
| Citation | 338 Mich. 226,61 N.W.2d 160 |
| Decision Date | 27 November 1953 |
| Docket Number | No. 71,71 |
| Parties | , 47 A.L.R.2d 112 BRAMER v. AMES et al. |
| Court | Supreme Court of Michigan |
White, Klute & White, William S. White, Niles, for defendant and appellant, George E. Ames.
C. L. Stickler, Three Rivers, for defendants and appellants Frank Howe, Jr., and Clarence G. Ott d/b/a Ott Trucking Co.
Richard A. Wade, Three Rivers, Carroll B. Jones, Marcellus, of counsel, for plaintiff and appellee.
Before the Entire Bench.
Plaintiff's decedent, Mrs. Wilma Mulhall, was fatally injured in an automobile accident occurring on trunk line highway M-60 in Cass county, August 9, 1950, at approximately 3 o'clock in the afternoon. The administrator of her estate brought this action to recover damages under the so-called death act, C.L.1948, § 691.581 et seq., Stat.Ann.1951 Cum.Supp. § 27,711 et seq., claiming that the death of decedent resulted proximately from concurrent acts of negligence on the part of defendants. At the time of the accident the weather was clear and the highway dry. The paved portion of the road was 20 feet in width, 10 feet on each side of the center line.
Mrs. Mulhall was a passenger in an automobile driven by Miss Katherine Weinberg, which was proceeding in a westerly direction in the north lane of traffic. The proofs indicate that such vehicle, referred to in the record as the Weinberg car, was preceded a short distance by another automobile. Defendant Ames, who was also driving in a westerly direction, undertook to pass the Weinberg car and for that purpose turned to the south half of the pavement. At the same time a tractor with trailer attached, owned by defendant Ott and driven by defendant Howe, appeared some distance in front of Ames and approaching him from the west. The testimony indicates that Ames first sought to return to his own side of the road, that he determined that he could not do so, and that the distance between the course of the approaching tractor and trailer and the cars in the north lane of traffic was insufficient to permit him to drive between them. He then turned his car rather sharply to the south, in front of the equipment operated by defendant Howe, and off the pavement, where his car ran into a tree. As defendant Ames crossed in front of him, Howe turned to his left toward the Weinberg car and then immediately to his right. Plaintiff claims that the front end of the trailer crossed the center line of the road and struck the Weinberg car, causing the death of its occupants, including Mrs. Mulhall.
On the trial of the cause before a jury defendants Howe and Ott moved at the close of plaintiff's proofs for a directed verdict in their favor, claiming that actionable negligence on the part of Howe had not been shown. The motion was denied. At the conclusion of the testimony said defendants again moved for a directed verdict, which motion was taken under advisement by the trial judge. The jury returned a verdict in favor of the plaintiff in the sum of $20,000 against all defendants. Motion for judgment notwithstanding the verdict was submitted on behalf of Howe and Ott, and was denied. Motions for new trials on behalf of all 3 defendants were also denied. Defendants have appealed.
On behalf of appellants Howe and Ott it is claimed that the trial court was in error in denying their motion for a directed verdict at the conclusion of plaintiff's proofs. The determination of this issue involves consideration of the testimony of witnesses for the plaintiff. An officer of the Michigan State police arrived at the scene shortly after the accident occurred and took a number of measurements, to which he testified. He stated that in proximity to the point of the impact the south shoulder of the road was 13 feet 10 inches in width. It may be noted in this connection that a chart presumably showing the situation existing at the time was prepared and was introduced. It appears by stipulation of counsel that such exhibit, together with other exhibits introduced by plaintiff and submitted to the jury, has been lost. In consequence the incorporation of such exhibits in the record returned to this Court on appeal was not possible.
The record further discloses that some distance to the west of the point of the collision the highway curved somewhat gradually to the south. The police officer placed the easterly end of such curve 336 feet from the approximate point of the accident. At what point on the curve defendant Howe might have seen the Ames car on the south half of the pavement, had he looked, does not appear from the record before us. However, a witness for plaintiff, a truck driver who had driven his equipment off the north side of the pavement shortly before the occurrence here involved, gave testimony indicating that defendant Howe did not apply any brake until he was approximately 4 feet from the Weinberg car, that separate brakes controlled the tractor and trailer, that the foot brake on the tractor was there applied, and that the result was the 'jack-knifing' of the trailer in such manner as to cause it to cross the center line of the pavement and to come in contact with the automobile. The tractor did not strike the Weinberg car. The witness stated further that Howe was driving on the south edge of the pavement, but he was unable to say that the tractor and trailer actually left the pavement at any point although the observations of the police officer suggest that the right wheels of the tractor were, at one point, off the pavement. This witness estimated the speed of defendants' equipment at approximately 40 miles per hour, stating further that he did not notice any 'characteristic motions' indicating that a brake had been applied at any prior point.
Further reference to the testimony of plaintiff's witnesses is unnecessary. In passing on the motion for a directed verdict, it was the duty of the trial judge to construe such testimony and permissible inferences therefrom in a light most favorable to plaintiff. Anderson v. Kearly, 312 Mich. 566, 570, 20 N.W.2d 728; Torma v. Montgomery Ward & Company, 336 Mich. 468, 475, 58 N.W.2d 149. Had defendant Howe made proper observations of the highway in front of him as he proceeded through the curve and upon the 'straightaway' he could scarcely have failed to notice the Ames car in the eastbound lane of traffic. The jury might well have concluded that the exercise of proper care on his part required that he decrease the speed of his equipment, and that his failure to do so was a proximate cause of the accident. It is a fair conclusion also that Howe might have driven entirely off the pavement, or approximately so. It appears that the trailer was empty. Defendants' equipment was approximately 8 feet in width. It must have been apparent to Howe that unless he either decreased his speed or got off the eastbound lane of traffic a sufficient distance to permit Ames to drive between the Ott equipment and the westbound cars an accident might result. Construing the proofs in accordance with the rule above indicated, the trial court was not in error in...
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