Essmeister v. Roadway Transit Co.

• Decision Date: 06 April 1936
• Docket Number: No. 107.,107.
• Citation: Essmeister v. Roadway Transit Co., 275 Mich. 387, 266 N.W. 391 (Mich. 1936)
• Parties: ESSMEISTER v. ROADWAY TRANSIT CO.
• Court: Michigan Supreme Court

275 Mich. 387

266 N.W. 391

ESSMEISTER

v.ROADWAY TRANSIT CO.

No. 107.

Supreme Court of Michigan.

April 6, 1936.

Action by Frank L. Essmeister against the Roadway Transit Company, a corporation, wherein defendant filed a cross-declaration. From a judgment for plaintiff and from an order denying defendant's motion for a new trial, defendant appeals.

Affirmed.

Appeal from Circuit Court, Branch County; Theo. T. Jacobs, judge.

Argued before the Entire Bench.

Bisbee, McKone, Wilson, King & Kendall, of Jackson, and Cowell & Frankhauser, of Coldwater, for appellant.

Dwight Britton, of Sturgis, for appellee.

TOY, Justice.

Before daylight on the morning of April 10, 1934, the tractor and semitrailer of plaintiff collided with the truck train of defendant, composed of a truck and fourwheel trailer, on the 18-foot paved highway, known as U.S. 112, at a place east of the west Branch county line, near the city of Sturgis.

At the time of collision, one Vernon Gilling, plaintiff's employee, was driving plaintiff's tractor unit in a westerly direction, plaintiff being with him, but asleep in a bunk at the rear of the driving compartment, and one Harry Niedzielski, defendant's employee, was driving defendant's unit in an easterly direction. As a result of the collision, the tractors of both units ‘jackknifed’ to the south of the highway and were completely demolished; the driver of defendant's truck was injured, and as a result he died a few hours later; the trailers of both parties were damaged; and the plaintiff was hurled through the top of his tractor cab with resultant injuries.

Plaintiff filed his declaration against defendant for damages, claiming as negligence of the defendant the alleged operation of defendant's truck unit on the wrong (north) side of the highway. Defendant answered denying the alleged negligence and filed a cross-declaration alleging that plaintiff negligently operated his truck unit on the wrong (south) side of the highway. Jury trial was had in the circuit. At the close of plaintiff's proofs, defendant moved for a directed verdict for the stated reason that there was no ‘competent evidence as to the way in which the accident occurred.’ This motion was denied. Defendant then produced witnesses in its defense, followed by rebuttal testimony on behalf of plaintiff. The jury returned a verdict for plaintiff in the amount of $1,076, and judgment was entered thereon. Defendant made a motion for new trial which was denied, whereupon it appealed to this court.

The question before us on appeal is summarized by defendant, in substance, as being whether there was ‘sufficient evidence to warrant the court in submitting the question of defendant's negligence to the jury.’

An examination of the record leads us to the conclusion that the physical facts appearing after the accident and as testified to by plaintiff's witnesses, while raising a question of fact, were sufficient, if believed by the jury, to stamp defendant's driver as negligent and to free plaintiff's driver of contributory negligence. Briefly stated, the physical facts appearing after the accident are shown by the record to be, in substance, as follows: Both tractors of the respective trailer units were practically off the south portion of the highway, both facing in a southerly direction; the fourwheel trailer of defendant, containing a heavy load, was almost entirely on the north half of the highway, with its left rear wheel at the extreme north edge of the pavement, and with no skid marks indicating any sidewise motion; the position of plaintiff's semitrailer, which was overturned, when righted, placed the wheels thereof on the north side of the pavement; the headlights of defendant's tractor were imbedded in the radiator of plaintiff's tractor; marks on the pavement, as stated by plaintiff's witness Kaehr, who was present at the scene of the accident shortly thereafter, and who testified as follows:

‘Q. Now did you see any marks in the pavement there made by those trucks to tell where they were when they came together? A. Yes, you can tell plain.

‘Q. Where was it they came together? A. On the North side.

‘Q. North side of the center line? A. Yes, sir.’

To the foregoing was added the testimony of plaintiff's witness Pinney, a garage mechanic of twenty years' experience, who had experience in handling wrecked trucks, who viewed the trailer units after the accident, and who, after being shown Exhibits 1, 2, and 3, the photographs of the trailer units as they appeared after the collision,...