Filter v. Mohr

• Court: Michigan Supreme Court
• Writing for the Court: BUSHNELL
• Citation: Filter v. Mohr, 275 Mich. 230, 266 N.W. 341 (Mich. 1936)
• Decision Date: 06 April 1936
• Docket Number: No. 97.,97.
• Parties: FILTER v. MOHR et ux.

275 Mich. 230

266 N.W. 341

FILTER

v.MOHR et ux.

No. 97.

Supreme Court of Michigan.

April 6, 1936.

Action by August Filter, as administrator of the estate of Arnold Bilkey, deceased, against Claude C. Mohr and wife. From an adverse judgment, the defendants appeal.

Reversed, and new trial ordered.

Appeal from Circuit Court, Lenawee County; G. Arthur Rathbun, judge.

Argued before the Entire Bench.

William B. Alexander, of Adrian, for appellants.

Frank J. Riley, of Blissfield, for appellee.

BUSHNELL, Justice.

In this action, the trial court, sitting without a jury, rendered a verdict for plaintiff against both defendants in the sum of $7,626.08. The court found plaintiff's decedent free from contributory negligence, and that the proximate cause of the collision and resultant injuries was the negligence of Claude C. Mohr, in operating his wife's automobile.

On May 21, 1934, as defendants were driving easterly from Adrian on U.S. 223, they observed Arnold Bilkey ahead of them on a motorcycle. West of Palmyra, Bilkey and the Mohrs passed a truck and then a car driven by witness Brown. The hour was about 9:45 p.m. and the weather clear. After passing the Brown car, Bilkey pulledover to the south side of the paved highway, the Mohrs continuing on the north side, intending to pass the motorcycle. Mohr testified he was traveling at the rate of from 40 to 50 miles per hour and that Bilkey was slackening his speed.

Just ahead of them was the intersection of an unpaved road. At a point, estimated by Mohr to be from 20 to 60 feet west of this intersection and by others at a lesser distance, a collision occurred. Bilkey was thrown to the pavement, fell under his motorcyle, and, as the result of a broken neck, died three days later, never having regained consciousness, The Mohr car struck a telephone pole on the east side of the intersection, 65 feet from the skid mark of its tires on the pavement, and came to a stop 359 feet east of the probable point of collision. Narrower tire marks were also found 2 feet south of the center black line of the highway; some distance ahead, and 5 feet to the south, there were fresh gouges and scratches in the concrete. These measurements and observations were made by Deputy Sheriff Howland, who arrived at the scene shortly after the accident.

Neither the front nor rear of the motorcycle was damaged, but its handle bars were bent and the brake lever on the left handle bar was sheared off. The tip of the left white rubber handle-bar grip was scuffed. The Mohr car had a white groove in the top center of the right front fender; the right running board was gouged and torn away from the fender. The front and rear right hub caps of the automobile were damaged and the right rear fender was jammed. The top of the right front fender was the same height from the ground as the left handle bar of the motorcycle. The white mark began at the dent in the top of the fender and continued along the right side of the Mohr car. The right-door handle was broken and bloody. Other damages were caused to the left side of the car by its subsequent contact with the telephone pole, which was ‘broken off in two pieces.’

Mohr sums up his version of the accident as follows:

‘It is my claim that the real cause of the accident was that Arnold drove into the side of my car. He crossed the center of the road and got over on my side. This is the real reason that caused the accident, but I do not mean to say that the fact that Bilkey had speeded up and slowed down had anything to do with the accident.

‘After I passed the Brown car I did not return to the righthand side of the highway because the motorcycle was slowing up and was in front of the Brown car, and so I passed it at the same time.’

Neither of the Mohrs, who were called by the plaintiff, for cross-examination, could say positively that their horn was sounded, but Mrs. Mohr insists that Bilkey did not give any signal with his hand and that he was north of the center of the road at the time of impact.

Brown, who was called by defendants, claims he was 200 feet west at the time, and did not actually see the collision. He further testified:

‘I heard the noise and I seen the motorcycle and boy go to the payment. At the time I saw the motorcycle go to the pavement the Mohr car was still on the lefthand side of the center line of the highway.

‘Q. And state whether or not you saw the motorcycle go towards the center line of the highway. A. I don't remember. * * * It is my judgment that the motorcycle and boy, after the accident, were not over two to four feet west of the intersection. The back wheel of the motorcycle was across the black line in the middle of the road, and front wheel was pointed in a slant towards the southeast. I stayed at the scene of the accident for half or three-quarters of an hour. It had not rained before the accident, but did rain while I was there.’

There are some discrepancies between the testimony of the eyewitnesses and the physical facts shown by the officers. Whether the disclosed physical facts refute the claim of an interested witness is a matter for the trier of the facts. Sanderson v. Barkman, 272 Mich. 179, 261 N.W. 291. But it is also true that:

‘No testimony can refute the unquestioned physical facts, and no indulgence in arithmetical soliloquy can make it otherwise. * * * The court still heeds physical facts, even though disputed by testimony.’ Brady v. Pere Marquette R. Co.,...