Cothran v. Cleenewerck

• Decision Date: 07 June 1926
• Docket Number: No. 77.,77.
• Citation: Cothran v. Cleenewerck, 235 Mich. 351, 209 N. W. 132 (Mich. 1926)
• Parties: COTHRAN v. BENJAMIN CLEENEWERCK & SON et al.
• Court: Michigan Supreme Court

235 Mich. 351

209 N.W. 132

COTHRAN

v.BENJAMIN CLEENEWERCK & SON et al.

No. 77.

Supreme Court of Michigan.

June 7, 1926.

Error to Circuit Court, Kalamazoo County; George V. Weimer, Judge.

Action by William Cothran against Benjamin Cleenewerck & Son and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before the Entire Bench.Bishop, Kilpatrick & Weaver, of Detroit, for appellants.

Harry C. Howard, of Kalamazoo, for appellee.

McDONALD, J.

The plaintiff had a verdict and judgment on a claim of damages for personal injuries occasioned by the negligence of the defendants. A motion for a new trial was refused, and the defendants brought error.

At the time of the accident the defendant Blanchard was a salesman for Benjamin Cleenewerck & Son, and was driving an automobile belonging to them. The plaintiff was driving a Ford truck loaded with household goods along the Ravine road near Kalamazoo. He had stopped at the extreme right of the traveled portion of the road to examine a tire. When he was ready to start the car, it was necessary to crank it. While he was attempting to do so, the defendant drove against the truck from the rear, shoving it forward over the plaintiff, breaking both of his legs and otherwise seriously injuring him. The negligence charged to the defendant Blanchard is that under the circumstances he was driving his car at an excessive rate of speed, and that he did not have it under control. The defendant claims that the accident was caused by the failure of the plaintiff to have the tail light of his truck lighted, and in not looking for approaching automobiles before undertaking to crank it. The principal questions involved relate to the charge of the court.

It is contended that the court erroneously instructed the jury on the question of the presumption of negligence arising from a rear-end collision.

Assuming that there was evidence rebutting the presumption of the defendant's negligence, the court was in error in charging the jury that they might consider this presumption in weighing the evidence. Gillett v. Michigan Union Traction Co., 205 Mich. 410, 171 N. W. 536; People v. Burbank (Mich.) 208 N. W. 687. If there had been any rebuttal evidence, we would feel compelled to reverse the judgment because of this instruction; but we find no such evidence in the record. The defendant Blanchard testified as to how the accident happened. His testimony clearly establishes his negligence and is the only evidence on that subject. The undisputed facts are that as he approached from the rear he saw the truck when he was six rods away from it. The road was icy and slippery. He did not apply his brakes or attempt to stop his car for the reason, as he says, that he planned to turn out and pass the truck on the left. But as he turned into the road he saw another car coming from the opposite direction. He did not think there was room to pass. Under these circumstances, he says:

‘I thought best to hit the corner of this truck than to hit the smaller car that was coming towards me. * * * If it hadn't been for the other car, I don't believe I would...