Collar v. Maycroft
| Decision Date | 07 January 1936 |
| Docket Number | No. 71.,71. |
| Citation | 264 N.W. 407,274 Mich. 376 |
| Parties | COLLAR v. MAYCROFT et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by James A. Collar, administrator of the estate of Allen Collar, deceased, against Orlo Maycroft and another. From a judgment for plaintiff, defendants appeal and plaintiff cross-appeals.
Reversed and remanded.
Appeal from Circuit Court, Ottawa County; Fred T. Miles, judge.
Argued before the Entire Bench.
Rodgers & Dunn, of Grand Rapids, for appellants.
John R. Detmers and Elbern Parsons, both of Holland, for appellee.
This suit arising out of an automobile accident is brought under the Survival Act. (Comp.Laws 1929, § 14040 et seq.) for the recovery of damages incident to the death of Allen Collar, a 13 year old boy. On trial before the court without a jury, plaintiff had judgment, from which defendants have appealed.
On the day of the accident, Allen Collar was riding in a Dodge automobile driven by his brother, Charles Collar, in a westerly direction along a public highway in Ottawa county. At an intersection with a north and south highway a collision occurred between the Dodge automobile and an Essex car proceeding in a southerly direction and driven by defendant Orlo Maycroft. This latter automobile was owned by defendant Flora Laubengayer Maycroft. The accident resulted in injuries to each of the Collar brothers and each died within a few hours thereafter. Defendant Orlo Maycroft was the only surviving eyewitness. He did not testify at the trial of the case. The record is unusual, in that it contains no testimony disclosing the exact manner in which, or the exact place at which, the collision occurred. The serious question presented is whether or not the record sustains the finding of the trial judge that defendant Orlo Maycroft was guilty of negligence which was the proximate cause of this accident.
In substance it is alleged in plaintiff's declaration that defendant Orlo Maycroft negligently ran into and against the automobile in which plaintiff's decedent was riding at the intersection of these highways. Defendants' answer denies this portion of the declaration, but in that connection affirmatively asserts: ‘That the collision between said Essex and Dodge automobiles was caused solely by the negligence of the driver of said Dodge automobile in failing to properly and seasonably observe the approach of the Essex automobile coming from his right, in failing to stop or slacken speed so as to avoid a collision with said Essex automobile and in failing to yield the right of way to said Essex automobile.’
So far as being an admission in pleading tending to sustain plaintiff's cause of action, the foregoing only admits that there was a collision between the two automobiles at the intersection of these highways. A witness who arrived about 20 or 30 minutes after the accident testified that the Dodge automobile was found headed in a westerly direction about 40 or 50 feet west of the north and south highway and about the same distance south of the east and west highway. It does not appear what course it pursued in reaching this point. There is no testimony as to the portion of the intersection of these highways (if it was within the intersection) in which the collision occurred, what course the Essex car pursued after the accident, or what portions of the respective cars were injured by the collision. Nor is there an iota of testimony on the all-important question as to which of these care, if either, seemed to have the right of way by reason of approaching the point of intersection in advance of the other. It is not even shown at what rate of speed either of these automobiles approached the intersection or at what rate either was going immediately preceding the collision.
A witness sworn for plaintiff testified that at his request defendant Orlo Maycroft, several months after the accident, accompanied the witness to the scene of the accident. From the testimony of this witness it appears that the view of the operators of these machines approaching this intersection was partially obstructed; but at a point between 65 and 70 paces north of the intersection there is a view across to the east and west road; and that as one approaches the intersection from this point ‘as you go down the hill there is a space of about thirty paces that you can't see the car (on the east and west highway), but then as you look across you can see it again from there to the corner.’ The witness testified that defendant Orlo Maycroft admitted to him that from the point 65 or 70 paces north of the intersection he saw the car in which plaintiff's decedent was riding approaching from the east, and, when asked where he next saw it, he replied: ‘I didn't see them until it was too late, and the collision.’ It does not appear how far east of the intersection the Dodge car was when observed by Maycroft, nor is there any testimony as to the rate of speed at which either of these automobiles was then approaching the intersection.
It is appellee's contention that the record contains testimony which establishes negligence on the part of Orlo Maycroft, since it appears he observed the Collar automobile approaching the intersection from the east at the same time Maycroft was approaching from the north, but that he did not make any further observation ‘until it was too late, and the collision,’ notwithstanding there was an opportunity to make an observation after he passed beyond the point where his view was obstructed. Since plaintiff's decedent was a minor, negligence of the driver of the automobile in which he was riding, if any, cannot be imputed to plaintiff's decedent. It is further asserted by appellee that, since no eyewitness of the accident testified in the case, and there being no other testimony to the contrary, the presumption prevails in behalf of plaintiff that ...
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Shaw v. Bashore
...Buchel v. Williams, 273 Mich. 132, 262 N.W. 759, which were decided after trial but before this Court's consideration of Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407, in which the decisions in Foote and Buchel on the point in question were followed, to the considerable disappointment of ......
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Ortisi v. Oderfer
...of negligence in a case of this nature may not be predicated on conjecture or surmise as to what occurred. In Collar v. Maycroft, 274 Mich. 376, 384, 264 N.W. 407, 409, in reversing a judgment in plaintiff's favor, it was 'The burden of establishing his right to recover was upon plaintiff. ......
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Hett v. Duffy, 1
...the oath of a witness, and it may be said with conviction that the error of picking up a misunderstood remark, as in Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407, would never have grown in their presence into Schillinger's monstrous Here, in the Schillinger case, is the sole proof of the......
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Schultz v. Sollitt Const. Co., 109.
...the most liberal employment of the doctrine res ipsa loquitur. That doctrine does not obtain in this jurisdiction. Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407, 409. In that case we said: ‘The burden of establishing his right to recover was upon plaintiff. Benedict v. Rinna, 257 Mich. 34......