Buttermore v. Faleris

• Decision Date: 23 February 1943
• Docket Number: No. 31.,31.
• Citation: 8 N.W.2d 72,304 Mich. 294
• Parties: BUTTERMORE v. FALERIS et al. (two cases).
• Court: Michigan Supreme Court

304 Mich. 294

8 N.W.2d 72

BUTTERMORE

v.FALERIS et al. (two cases).

No. 31.

Supreme Court of Michigan.

Feb. 23, 1943.

Separate action by Dale Buttermore, father of Francis Buttermore, and by Francis Buttermore, by Dale Buttermore, his next friend against William Faleris and Thomas Faleris for injuries suffered by Francis Buttermore in a collision between his motorcycle and an automobile owned by one of the defendants and operated by the other. The cases were tried together. From separate judgments for plaintiffs, defendants appeal.

Judgments set aside and new trial granted.

Appeal from Circuit Court, Wayne County; Robert Toms, Judge.

Before the Entire Bench.

Stewart A. Ricard, of Detroit, for defendants-appellants.

Cochran & Crandell, of Northville, for plaintiffs-appellees.

SHARPE, Justice.

Francis Buttermore, by his next friend, and Dale Buttermore, father of Francis, brought separate actions against William and Thomas Faleris for damages sustained by Francis Buttermore in a collision between a motorcycle and an automobile at or near the intersection of the Northville-Plymouth road and Willow drive, a driveway into Cass Benton Park. The cases were tried simultaneously; and from separate judgments for plaintiffs, defendants appeal.

Northville-Plymouth road, a regular two-lane cement highway, runs north and south and passes Cass Benton Park, which is a public park in Wayne county on the west side of the highway.

On May 6, 1939, at about 8:30 in the evening, Francis Buttermore was proceeding in a northerly direction on the Northville-Plymouth road on a motorcycle. At the same time, William Faleris, driving a Chevrolet car, was proceeding in the same direction on the same highway. The Chevrolet car was owned by Thomas Faleris, but was being driven with his knowledge and consent.

Defendnat William Faleris testified that he was traveling north on the Northville-Plymouth road at a speed of approximately 25 miles per hour; that as he approached the entrance to the park, he reduced his speed and proceeded to make a left hand turn into the driveway; that at this time he had reduced his speed to eight or ten miles per hour, held out his hand to signal that he was going to make a left hand turn and by the application of the brakes caused his rear lights to ‘blink’ off and on.

Plaintiff Francis Buttermore, the driver of the motorcycle, testified that he was proceeding in a northerly direction on the right or east side of the center line of the above highway; that his rate of speed was approximately 35 miles per hour; that when he was about 100 feet from Willow drive, he saw defendant's car turn sharply to the left and proceed to enter the driveway; that as defendant turned to the left into the driveway, he (plaintiff) also turned to the left; that he had two brakes on his motorcycle, but only had time to ‘pull’ his front brake on; and that he was unable to avoid the collision.

The causes came on for trial and at the close of all proof were submitted to a jury. The jury, after deliberating some time, returned to the court room for furtherinstructions concerning what constitutes a highway and intersection.

The trial judge then gave the following instruction:

‘The Court: Well, I think I can settle that for you. I charged you yesterday as to the statute in this state which reads:

“4707(c): The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any intersection of highways, unless permitted to do so by a traffic officer or police officer.'

‘I tried to emphasize the words ‘or pass' yesterday, thinking that perhaps you would recognize the meaning of those words and bear in mind the testimony. Apparently you didn't. So, therefore, I charge you that there is no evidence in this case that the motorcycle did overtake and pass the automobile. Not only that, I was a little doubtful yesterday, and I am not today, as to whether or not this was an intersection of a highway. I think the path leading into the park where the automobile turned cannot, in law, be considered as a highway. Therefore, on two grounds: First, that it was not an intersection of highways, and second, that the motorcycle did not overtake and pass the automobile; that on that ground the driver of the motorcycle is not guilty of contributory negligence. So, if you are debating as to whether or not the plaintiff, the driver of the motorcycle was guilty of contributory negligence in violating that particular rule, I charge you that he was not.’

The jury returned a verdict in favor of Francis Buttermore in the sum of $1,800 and a verdict in favor of Dale Buttermore in the sum of $473.90.

Following the verdicts and judgments, defendants made a motion for a new trial based upon the following:

‘1. That the court erred in instructing and advising the jury that the place of the accident could not be designated as an intersecting highway.

‘2. That the court erred in advising the jury the plaintiff was not attempting to pass the defendant at the point of impact.’

The trial judge denied the motion for a new trial and said:

‘The motion for a new trial will be denied upon the following ground: The statute 4707(c) makes it illegal for one vehicle to overtake and pass another within an intersection or at an intersection, among other places. The testimony in this case shows that the plaintiff's vehicle did not overtake and pass the automobile driven by the defendants and therefore did not violate this statute, and therefore was not guilty of contributory negligence.

‘The instruction of the court to the jury that this was not a highway was erroneous, but it was a harmless error, in view of the fact that had the instruction been otherwise, there was no proof of violation by the plaintiff of the statute here involved prohibiting the overtaking and passing of one car by another at an interesection.’

Defendants appeal and contend that the supplemental instruction given to the jury was contrary to the established facts; and that it was error to instruct the jury that plaintiff was not guilty of contributory negligence.

Under the above instruction the only issues for the consideration of the jury were the negligence of the driver of the automobile and the possible assessment of damages.

If there was no highway intersection involved or if there was no proof that plaintiff violated the...