O'Brien v. Wahl, 14

• Decision Date: 05 January 1953
• Docket Number: No. 14,14
• Citation: 56 N.W.2d 279,335 Mich. 601
• Parties: O'BRIEN v. WAHL
• Court: Michigan Supreme Court

Page 279

56 N.W.2d 279

335 Mich. 601

O'BRIEN v. WAHL

No. 14.

Supreme Court of Michigan.

Jan. 5, 1953.

James O. Kelly, Ann Arbor, for plaintiff and appellee.

Burke, Burke & Smith, Ann Arbor, for defendant and appellant.

Before the Entire Bench.

ADAMS, Justice.

This litigation arises out of a collision that occurred at the intersection of Packard road and U.S. 23 in Washtenaw county at 12:45 p. m. on March 15, 1949. Defendant Wahl was driving south on U.S. 23 and plaintiff O'Brien was a guest passenger in an automobile being driven in a westerly direction on Packard road by Herman De Marco. A blinker light hangs at the center of the intersection, flashing red on Packard road and amber on U.S. 23. At the time of the accident the weather was clear and the pavement dry. De Marco stopped just before he entered the intersection and then proceeded to the point of collision past the center of U.S. 23. Testimony is conflicting as to the speed of the cars and care exercised by the drivers.

Suit was brought for personal damages sustained by the plaintiff when she was thrown from the De Marco car. Upon trial, the jury returned a verdict of $4,000 against the defendant who now appeals claiming that certain testimony should have been stricken by the trial judge and that the verdict was against the great weight of the evidence.

Plaintiff's principal witness was the driver of the car in which she was riding, and it is the contention of the defendant that his testimony should have been stricken because it was incredible. De Marco testified that immediately preceding the collision he observed the defendant approaching at a distance of 107 paces at an estimated speed of approximately 70 miles per hour. He further said that he continued to observe the defendant's car for a matter of seconds, but when pressed on cross examination to be more definite, said: 'It happened so quickly, it was almost like the snap of a finger to me.' Primarily on the basis of this statement, defendant charges that De Marco's testimony was incredible, reasoning that it was physically impossible for an automobile to travel 107 paces in the time required for the snap of a finger.

Defendant further argued that if De Marco's car, traveling from 5 to 10 miles per hour according to the record, had already entered the intersection when the defendant's car was 107 paces away, it would be impossible for the defendant to reach the intersection before the De Marco car had completed the crossing.

Testimony of a witness as to the speed of an approaching car may be stricken in the discretion of the trial judge where it appears that the witness had no real opportunity to make an observation of the circumstances and conditions then existent, Hinderer v. Ann Arbor Railroad Co., 237 Mich. 232, 211 N.W. 734, and Wright v. Crane, 142 Mich. 508, 106 N.W. 71, but there is nothing in the present record to indicate that De Marco was in any way prevented from seeing the defendant's car as it approached nor does the...