Cousino v. Briskey, s. 62

• Decision Date: 01 April 1961
• Docket Number: Nos. 62,s. 62
• Citation: 114 N.W.2d 365,366 Mich. 1
• Parties: Alfred R. COUSINO and American Hardware Mutual Insurance Co., Subrogee of Alfred R. Cousino, Plaintiffs and Appellees, v. Arthur BRISKEY and Melvin Eugene Briskey, Defendants and Appellants. Ruth Ann COUSINO, Plaintiff and Appellee, v. Arthur BRISKEY and Melvin Eugene Briskey, Defendants and Appellants. ,
• Court: Michigan Supreme Court

Page 365

114 N.W.2d 365

366 Mich. 1

Alfred R. COUSINO and American Hardware Mutual Insurance

Co., Subrogee of Alfred R. Cousino, Plaintiffs and Appellees, v. Arthur BRISKEY and Melvin Eugene Briskey, Defendants and Appellants.

Ruth Ann COUSINO, Plaintiff and Appellee, v. Arthur BRISKEY and Melvin Eugene Briskey, Defendants and Appellants.

Nos. 62, April Term, 1961, 63, April Term, 1961, 64, April

Term, 1961.

Supreme Court of Michigan.

March 16, 1962.

Ready & Braunlich, Monroe, for plaintiffs and appellees Alfred R. Cousino and Ruth Ann Cousino.

Weipert & Costello, Monroe, for plaintiff and appellee American Hardware Mut. Ins. Co.

Kelley & Kelley, Monroe, for defendants and appellants.

James J. Kelley, Jr., Monroe, for defendants and appellants.

Before the Entire Bench, except SMITH and ADAMS, JJ.

SOURIS, Justice (for reversal).

Two automobiles approached a virtually blind rural intersection at speeds in excess of 40 miles per hour. The intersection was uncontrolled by any sign or signal indicating right of way. Neither driver applied brakes prior to the collision. The automobiles met in the intersection, with plaintiffs' car striking defendants' car at about the right rear wheel. Trial was to a circuit judge without a jury and resulted in judgments for plaintiffs. Among other errors claimed to have been committed, defendants claim that plaintiff driver was guilty of contributory negligence and the trial judge's finding to the contrary was against the great weight of the evidence.

We agree. C.L.S.1956, § 257.649 (Stat.Ann.1957 Cum.Supp. § 9.2349), which gave precedence to the plaintiff driver on the right, did not warrant her crossing a blind intersection at unslackened speed under the circumstances disclosed by this record. Her own testimony, elicited both on direct and cross examination, summarized and quoted below, compels reversal.

Mr. Justice BLACK has written for affirmance. As this Court recently said in Schneider v. Pomerville, 348 Mich. 49, at p. 55, 81 N.W.2d 405, at p. 408, '* * * when evidence is appraised to determine clear preponderance thereof, forceful argument each way subsists to the last and usually survives final judgment,' a circumstance from which we would expect not infrequently to encounter 'forceful argument each way' even in the opinions rendering final judgment. However, no such 'forceful argument' is here made in the opinion for affirmance. It does not consider the evidence of plaintiff driver's contributory negligence, an issue properly pleaded by defendants as required by section 3a of Court Rule No. 23 and, in our view, proved by them by a clear preponderance of the evidence. The opinion for affirmance reserves its evidentiary comment only for the proofs relating to defendant driver's unquestioned negligence. Its sharp shafts are, instead, aimed straight at the heart of our undertaking,--the right of this Court to review a trial judge's findings of fact in a non-jury law action. If the views expressed in that opinion are right, we approach the day of judicial fact finding infallibility by abdication of our power, and denial of our duty, to review the findings of fact made by our trial judges in such actions. It is said that: 'Surely, on this distinctive record of disputed facts and inferences, we have no more right to disturb the trial judge's conclusion in such regard than if it had been reported by a jury.' If this be the law of this state, we have indeed traveled great distances since Schneider v. Pomerville, supra; Northwest Auto Co. v. Mulligan Lincoln-Mercury Inc., 348 Mich. 279, 83 N.W.2d 306, and Barnes v. Beck, 348 Mich. 286, 83 N.W.2d 228, all written for a unanimous Court in 1957.

The scope of our review of a trial judge's fact findings is different from, and broader than, our review of a jury's findings. This Court put it this way in Schneider, 348 Mich. at pp. 54 and 55, 81 N.W.2d p. 408:

'Our duty under said Rule 64, the question being duly posed and saved for review, is to sift the evidence for determination whether it clearly preponderates in favor of the appellant's cause. Necessarily, the judicial sieve will be of finer mesh than the one correspondingly employed here on review of denial of motion for new trial in a jury case. This is as it should be. A jury's verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge's verdict-view of the same facts, learned though the judge may be in law. For reasons known well to students of American history, a finding of fact by 'the twelvers' is more apt to be sound than that of one man. If this be right, our task at bar is bound to be a more difficult one than if the judgment below had been entered on verdict of a jury. When in rare instance a jury's verdict is judged contrary to overwhelming weight of evidence, the conclusion must be so obvious that verdict-sustaining argument loses all force. On the other hand, when evidence is appraised to determine clear preponderance thereof, forceful argument each way subsists to the last and usually survives final judgment.'

In Northwest Auto Co. v. Mulligan Lincoln-Mercury Inc., 348 Mich. at p. 284, 83 N.W.2d p. 308, the Court added the limiting qualification that critical proof has been overlooked or ignored before we may reverse or remand on a clear preponderance assignment of error:

'Defendant's proof, supporting its claim for such damages, seems quite persuasive so far as this printed record can or does disclose. Had this Court been constituted and authorized to try law cases anew on pleadings and transcripts, we might agree with defendant that its said proof appears more convincing than that received in opposition. But such is not our province. We must continue to point out to the profession what is now a commonplace--that the function of deciding credibility and finding facts is committed to our courts of original jurisdiction; that we cannot reverse or remand simply because the facts found below are forcefully opposed by others shown in the reord, and that we do not reverse or remand on bid of a 'clear preponderance' assignment in the absence of convincing circumstances disclosing that crucial proof has been overlooked or ignored. No more need be said in view of recent treatment of this apparently troublesome rule of practice (Schneider v. Pomerville, 348 Mich. 49, 81 N.W.2d 405, and Barnes v. Beck, supra).'

And in Barnes v. Beck, in a footnote at p. 290 of 348 Mich., at p. 230 of 83 N.W.2d the Court succinctly and accurately states the nature and the scope of, and the limitations upon, our review of non-jury law actions brought to us on a claim that judgment was contrary to the preponderance of the evidence:

'* * * In short, it takes convincing proof (as in Schneider v. Pomerville, supra [348 Mich. 49, 81 N.W.2d 405]) that the judicial trier of facts has overlooked or ignored and thus did not test crucial testimony to warrant reversal or remand by force of an assignment addressed to clear preponderance. Indeed, to sustain such an assignment, we must be shown what is rightly known as a 'glaring error' (Besser Manufacturing Co. v. United States, 343 U.S. 444, 448, 72 S.Ct. 838, 96 L.Ed. 1063).'

With due regard for our limited role in this appeal, we conclude that a clear preponderance of the evidence established plaintiff driver's negligence as a contributory cause of the collision and that the trial judge would have so found had he not overlooked crucial proof concerning obstructions to the observations plaintiff driver attempted to make along the interecting road. The facts with which we deal are as follows:

One sunny, clear, dry June afternoon, Mrs. Cousino was driving west on the gravel surface of Erie road. Melvin Briskey, one of the defendants, was driving north on Douglas road. Douglas has a blacktop surface until it passes the intersection at Erie, after which it, too, becomes a gravel road. Mrs. Cousino approached the intersection at between 40 and 45 miles per hour. She was familiar with Erie road and its intersection with Douglas road, having traveled the same route on an average of twice a week for about three months. When she was about 150 feet from the intersection she first looked to her left for approaching northbound cars but schrubbery obstructed her view of Douglas road. She then looked to her right, and when she was about 50 feet from the intersection, she made her second observation to her left. At that moment, through a break in the shrubbery, she saw the top of defendans' automobile about 75 feet south of the intersection. She testified that, although she did not know who had the right of way, she removed her foot from the accelerator but it was too late to brake the car. The collision occurred almost instantly thereafter.

We have had occasion, recently, to examine the rights and the obligations of automobile drivers we describe as favored,--favored because of a statute, as we have noted above, which gives precedence to a driver on the right over a driver approaching from the left or because of signal devices designed to control automobiles on intersecting roadways. See McGuire v. Rabaut, 354 Mich. 230, 92 N.W.2d 299, and cases therein cited. While recognizing that a favored driver 'is not required to have his car under such control as to be able to avoid collision with a subordinate driver coming illegally into his path', we also recognize that the favored driver does have a duty to exercise due care under the circumstances by making observations which a reasonably prudent man would make. McGuire v. Rabaut, pp. 235-237, 92 N.W.2d 299, 302.

This is a case in which plaintiff driver's own testimony, taken in its most favorable light, discloses her complete lack of due care. Traveling along a gravel road at 40 miles per hour toward a familiar crossroad, she made no observation for intersecting traffic until she was only 150 feet away, less than three seconds (at 40 miles per hour) from it....