Evans v. City of Detroit, 20.

• Decision Date: 05 October 1931
• Docket Number: No. 20.,20.
• Citation: 255 Mich. 381,238 N.W. 279
• Parties: EVANS v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

255 Mich. 381

238 N.W. 279

EVANS

v.CITY OF DETROIT et al.

No. 20.

Supreme Court of Michigan.

Oct. 5, 1931.

Error to Circuit Court, Wayne County; Parm C. Gilbert, Judge.

Action by Beatrice Evans, by next friend, against the City of Detroit and another. Judgment for defendants, and plaintiff brings error.

Affirmed.

Argued before the Entire Bench.Bertran J. Couture, of Detroit (Francis W. Allen, of Detroit, of counsel), for appellant.

Raymond J. Kelly and A. Albert Bonczak, both of Detroit, for appellee City of Detroit.

Walter Schweikart and Julien Winterhalter, both of Detroit, for appellee Weaver.

NORTH, J.

On trial for damages which plaintiff claims to have sustained incident to a collision between a motortruck and a street car on which she was a passenger, the jury rendered a verdict in favor of both defendants, the owner of the truck and the city of Detroit, which municipality operated the street car system. Plaintiff reviews by writ of error.

The collision occurred in the daytime, September 30, 1926, at the corner of Jefferson avenue and St. Jean street in Detroit. The motortruck of defendant Weaver, loaded with brick, and constituting a total weight of substantially fourteen tons, was proceeding northly on St. Jean street. The street car train of defendant city, consisting of a motorcar and a trailer, was proceeding easterly on Jefferson avenue. There was somewhat of a congestion of vehicular traffic at this intersection which doubtless had much to do with the occurrence of the accident. A more detailed recital of the circumstances attendant upon this collision is not necessary, because in our review of this phase of the case we will construe the record in the aspect most favorable to the appellant by assuming for the purposes of this decision that there was testimony which established negligence on the part of one or both of the defendants, which negligence caused the collision which plaintiff claims resulted in injuries to her for which she seeks damages. We think the record is such that we are fully justified in reviewing this case on the assumption that the jury must have found actionable negligence on the part of one or the other of the defendants; but that their finding against the plaintiff was on the controlling issue as to whether she was injured in the manner claimed and as to the character or extent of such injuries, if any.

As bearing upon plaintiff's claim as to the manner in which she was injured and the character and extent of her injuries, and as disclosing the decided conflict in the testimony on this phase of the case, we quote somewhat at length from the record. Plaintiff testified: ‘When I approached the place where I expected to leave the car, I rang the bell and got up and walked to the door and was just about at the door by the conductor when I was all of a sudden thrown back and my head was about a foot from the seats of the front of the car. * * * I fell on my back, but slightly to the left side and broke the fall with my left arm. * * * I couldn't positively say how long I lay there after the fall although I know the conductor had left the car and people had left the car and two ladies helped pick me up. * * * When I fell, I did notice everybody else that was sitting down was thrown to the side, the direction where I fell. * * * I couldn't held myself up. I just laid there kind of stunned and didn't know enough to help myself up. Two women assisted me up then we went around to look at the accident. I went to the front of the street car to see what had caused the car to stop so quickly and make me fall. * * * At that time I felt all right although my arm was bleeding. * * * I didn't think that I was hurt. I went in the store and told them that I fell and just scratched a little. The bruises turned up later. I purchased the dress and went home. * * * That night I seemed to be physically all right. The next morning I was busy getting ready for the office and didn't pay much attention. * * * The next day on Friday, I went to work in the morning. I kept getting worse and all day at the office and that night I was pretty nervous when I come home and the arm was still paining me something terrible. * * * When I first got home from work, I was pretty nervous and I went to the department of street railways to report the accident. I went Friday evening and again Saturday. * * *’

Plaintiff was riding in the second car or trailer. The importance of showing exactly what happened to her at the time of the collision has been obvious since the inception of this litigation. In her direct examination, plaintiff did not reveal the identity of the ‘two women’ who she claims helped her to her feet after she was stunned by being thrown to the floor of the car. But on cross-examination she testified as follows:

‘Q. Now, going to the night of this accident, was anybody in that trailer that you know? A. There were a couple of girls from the office, but I didn't know them personally.

‘Q. You knew their names? A. From Frederick Stearns & Company.

‘Q. Just answer my question-do you know their names? A. Yes.

‘Q. You knew where they were employed? A. Yes.

‘Q. Are you going to have these girls in court to testify in this case that was with you the night of this accident? A. No, sir.

‘Q. Have you made any effort to get them? A. I don't know whether any effort has been made or not to get them.

‘Q. Have you made any effort to get them? A. I have not; no, sir. * * *

‘Q. The girl at Nyal's was on the street car with you that night? A. She was on the street car.

‘Q. How long did you know her? A. She just worked for the company about a month or two before I left.

‘Q. She was riding in an easterly direction on this street car? A. Yes.

‘Q. Had you ever spoken to her before this night? A. Yes.

‘Q. Who...