Dauer's Estate v. Zabel
| Decision Date | 01 October 1969 |
| Docket Number | Docket No. 1931,No. 3,3 |
| Citation | 19 Mich.App. 198,172 N.W.2d 701 |
| Parties | The ESTATE of David Anthony DAUER, Deceased, by Eva F. Dauer, Administratrix, Plaintiff and Appellee, v. Carl J. ZABEL, Defendant and Appellant |
| Court | Court of Appeal of Michigan — District of US |
A. T. Lippert, Jr., Smith, Brooker, Harvey & Cook, Saginaw, for appellant.
Cicinelli, Mossner, Majoros, Harrigan and Alexander, Saginaw, for appellee.
Before HOLBROOK, P.J., and BURNS and WISE, JJ. *
This is an action brought by plaintiff, administratrix of the estate of David Anthony Dauer, against defendant, Carl J. Zabel, for recovery under the Michigan wrongful death act, C.L.1948, §§ 691.581, 691.582 (Stat.Ann.1959 Cum.Supp. §§ 27.711, 27.712). 1 This cause was heard by the Court, without a jury, and a final judgment in favor of plaintiff was entered for the sum of $15,721.40, plus interest from the date of death of the deceased.
A history of the progress of this case on appeal is set forth in Dauer v. Zabel (1967), 9 Mich.App. 176, 156 N.W.2d 34, and Dauer v. Zabel (1969), 381 Mich. 555, 164 N.W.2d 1. The trial judge has filed a supplemental opinion and findings of fact which have been certified as required by the remand.
Involved in this cause is a two car accident which occurred at the intersection of East Kent and Sasse roads in Midland county, on May 2, 1962, about 5:30 p.m., resulting in fatal injury to plaintiff's decedent, David Anthony Dauer, age 5 years, a backseat passenger in a 1958 English Ford automobile driven by his older brother, Thomas Dauer, age 18 years. The English Ford was travelling west on East Kent road, a two-lane gravel road, running east and west. Defendant Carl J. Zabel, driving a 1957 Buick automobile, was proceeding south on Sasse road, a two-lane, blacktop road, running north and south over East Kent road. A stop sign was located at the intersection requiring traffic on Kent road to stop before negotiating Sasse road. That decedent's driver stopped at the intersection in obedience to the stop sign was undisputed.
While there was some conflict in the testimony of the various witnesses concerning the prevailing weather conditions at the time of the accident, the main thrust of the testimony on this point was to the effect that visibility was poor.
At the trial of this cause, defendant did not take the stand and did not present any proofs, except through cross-examination of plaintiff's witnesses. However, a part of defendant's deposition was introduced into evidence by plaintiff.
Defendant on appeal presents 2 questions for consideration which are restated and dealt with in order.
Plaintiff's complaint alleged that the defendant was guilty of negligence in striking the automobile in which plaintiff's decedent was riding, and that such negligence was a proximate cause of the death of plaintiff's decedent. Such acts or failure to act of defendant are dealt with in the trial judge's findings of facts, viz:
'The court finds that the defendant was negligent in the following respects and that such negligence was a proximate cause of the accident in question:
'1. Defendant was driving at a speed of 60 miles per hour or more on a rather narrow, blacktop road, which was wet and slippery.
'2. He was driving without lights at a time when it was dark, foggy and raining heavily, and visibility was extremely poor. Had defendant taken the precaution to light his lights he may very well have been seen by plaintiff's driver as he approached, and the accident may well have been avoided.
'3. The speed at which defendant was driving was excessive under all of the circumstances and conditions existing, and defendant was thus in violation of the basic speed law, CLS 1961, § 257.627(a) (Stat Ann 1960 Rev § 9.2327(a)).
'4. He failed to keep a careful and proper lookout as he approached the intersection.
'5. He failed to sound his horn in warning, after he saw plaintiff's vehicle pull out from the stop sign. This, in the court's opinion, was in violation of MCLA § 257.706 (Stat Ann 1968 Rev § 9.2406). Had defendant sounded his horn in timely fashion, plaintiff's driver may well have been able to take evasive action himself to avoid the accident.
The proofs offered by plaintiff upon the trial of this cause consisted of the examination of several witnesses who testified as to their observations on May 2, 1962, at or near the time of the accident in question at the accident scene. Witness Russell Hartley, at the time a deputy sheriff with the Midland county sheriff's office, who investigated the accident at East Kent and Sasse roads shortly after its occurrence, testified in part as follows:
'Q. When you arrived at the scene of the accident, Mr. Hartley, what was the weather like?
'A. It was raining,--wet.
'Q. Were both roads wet?
'A. Yes, sir.
'Q. The Sasse road was a black top road, was it?
'A. Yes, sir.
'Q. And Kent road was a gravel road?
'A. Yes, sir.
'Q. How would you describe the atmosphere as far as lighting conditions and things of that nature?
'A. It was cloudy, of course, and raining.
'Q. And--
'Court. It was raining when you arrived, witness?
'A. Yes, sir.
'Court. I see. And the road was wet?
'A. Yes, sir.
'Q. Did you talk to Mr. Zabel out there at the scene of the accident?
'A. Yes.
'Q. And you questioned him about how the accident had occurred, is that right?
'A. That's correct.
'Q. Did you ask him about the speed of his automobile?
'A. Yes, sir, I did.
'Q. At the time of the collision, his speed then?
'A. Yes, sir.
'Q. And what did you ask him and what did he tell you?
'A. I asked him how fast he was traveling and at that time he said 60 miles an hour.
'Q. He told you, did he not, that the other car had stopped at the intersection?
'A. That is correct.
'Q. Now, officer, you have indicated it was raining at the time you got there at the scene of the accident. How would you describe the rain, heavy or light?
'By Mr. Lippert. Let the witness describe it, please.
'A. Well, it was raining quite hard. I had my rain coat on at the time,--(pause) or all during the time I was there.
'Q. Were there any other atmospheric conditions present that you noticed?
'A. There was a slight ground fog.
'Q. Did you notice in making your report of this accident any obstructions of any kind for either driver?
'A. Well, the windshields were wet, of course, due to the rain.
'Q. Both of them?
'A. Both of them, yes.
'Q. Did you notice anything with respect to the lights on the car, the Buick automobile, when you got there?
'A. (Pause) No, sir, I didn't.
'Q. You didn't notice what?
'A. Lights on the Buick automobile.
'Q. Mr. Hartley, you testified in part as to what the conversation was you had with Mr. Zabel following the accident, as shown on your accident investigation report?
'A. Well, his statement, as one of the drivers, was taken at the scene.
'Q. Yes. What was that full statement? Would you give it to us as it is indicated on your accident report? Can you make it out?
'A. It's pretty dim, sir, but I think I can. Mr. Zabel stated that he was traveling south on Sasse road and observed the number 2 car--
'Q. Would that be Mr. Dauer's automobile?
Witness Thomas Duane Dauer, driver of the automobile in which plaintiff's decedent was a passenger, testified in part:
'Q. Tell us, as you approached the intersection of Sasse and East Kent roads on that day, what was the weather like?
'A. It was raining and a ground fog.
'Q. When you say it was raining, Tom, could you describe that a little better for us?
'A. Yes. It was a heavy rain.
'Q. When you were at the store in Laporte, was it raining or just starting to rain?
'A. It was sprinkling at that time, but it had gotten heavier.
'Q. It had gotten heavier?
'A. Yes, sir.
'Q. Where was your brother located in the car as you approached this intersection?
'A. In the back seat.
'Q. And you were seated in the front seat, Tom, driving?
'A. Yes, sir.
'Q. Were the windshield wipers going?
'A. Yes, sir.
'Q. Was there a defroster on that car?
'By Mr. Lippert. These are all leading questions.
'Court. Well,--
'Court. I think you may ask the witness what equipment his car had, Mr. Mossner.
'By Mr. Mossner, continuing:
'Q. What equipment did your car have, Tom?
'A. A heater and defroster.
'Q. Tell us what happened when you came to the intersection of Kent and Sasse roads.
'A. Well, I came up to the intersection and stopped at the stop sign. My brother and I played a game. Whenever I would take him anywhere, I would let him show me the way home so that he could get to know the area, so that whenever he went by himself somewhere he could find his way home later in life. I stopped and I reached over and wiped off the side window so I could see. While I was doing that, I asked him which way should I go. * * *
'Q. Let me re-phrase it. Did you do anything else Tom, other than wipe off the window and have a conversation with your brother while you were stopped there?
'A. Yes, I looked both ways.
'Q. Could you tell us approximately how long you were stopped there?
'A. (Pause) I don't know.
'Q. Now after you have indicated you started to proceed into this intersection, Tom, what is the next thing you remember?
'A. Would you state that again, please?
'Q. What is the next thing you remember after you started to proceed into this intersection?
'
Clayton Birtles, whose home was located near the accident scene on May 2, 196i, testified in part:
'Q. And I'll ask you whether or not before the time the accident happened if you had noticed either one of the 2 cars...
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