Faustman v. Hewitt

• Court: Michigan Supreme Court
• Writing for the Court: SHARPE
• Citation: Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863 (Mich. 1936)
• Decision Date: 31 January 1936
• Docket Number: No. 138.,138.
• Parties: FAUSTMAN v. HEWITT et al.

274 Mich. 458

264 N.W. 863

FAUSTMAN

v.HEWITT et al.

No. 138.

Supreme Court of Michigan.

Jan. 31, 1936.

Action by Philip Floyd Faustman, as guardian of the person and estate of Bert Faustman, insane and incompetent, against Barton G. Hewitt and another. Judgment for plaintiff, and defendants appeal.

Reversed, without a new trial.Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench.

Kelley, Sessions, Warner & Eger, of Lansing, for appellants.

Plummer Snyder and Marshall, Searl & Dean, all of Lansing, for appellee.

SHARPE, Justice.

At about the hour of 6:15 on the morning of July 18, 1934, Bert Faustman was driving a Ford car in a southerly direction on a road known as the Eifert road, which intersects an east and west road at a place known as ‘Beck's Corner.’ At about the same time, Barton G. Hewitt was driving a Hudson car in an easterly direction on the east and west road; said road being known as Ingham county road No. 435. Both roads were graveled to a width of approximately 26 feet. At the northwest corner of the intersection stood a store building. In front of this building, which faced on the north and south road, was a gas pump which stood 14 feet east of the store front.

At the time the collision occurred, Faustman was returning from Michigan State College, where he was employed as a fireman, and Hewitt, who was operating a car with the permission of the owner, defendant Grace J. Hadley, was proceeding to Jackson Prison where he was employed.

At the southeast corner of the intersection near the graveled portion of the highway and 11 feet east of the east line of the north and south road stands a guard post which is painted white with a black top. Fourteen feet east of this guard post is a metal culvert which runs under the surface of the east and west road. Just south of the guard post is a ditch which runs along the east and west road. After the collision, the Hudson car was found on the gravel portion of the east and west road turned around with the front end toward the west and the rear end in line with the culvert, while the Ford car lay in the ditch headed in a northeasterly direction. There was some testimony of skid marks which began in the gravel from a line west of the center of the north and south road, while the gravel surface of the east and west road, between the culvert and the guard post, was torn up.

As a result of this collision, Bert Faustman was severely injured, and at the time of the trial had been adjudicated insane by proper probate proceedings. This suit was brought by plaintiff as guardian of the estate and person of Bert Faustman.

At the close of plaintiff's proof, the defendants made a motion for a directed verdict, claiming that there was no proof of actionable negligence on the part of defendant Hewitt, and no testimony that plaintiff's ward was free from contributory negligence. This motion was denied and again renewed at the close of all proof. Defendants urge that the trial court was in error in not granting this motion when first made.

The burden was on the plaintiff not only to show negligence on the part of Hewitt, but also to show that he (plaintiff) was free from contributory negligence. There being an eyewitness, there was no presumption that plaintiff was free from contributory negligence.In Foote v. Huelster, 272 Mich. 194, 261 N.W. 296, 298, we said: ‘Where there is an eyewitness to an accident, the issue of due care rests upon proof and not upon presumption. This is so even if the eyewitness is the adverse party.’

See, also, Buchel v. Williams, 273 Mich. 132, 262 N.W. 759.

We are not unmindful of the fact that when the trial court denied defendants' first...