Fitzcharles v. Mayer

• Decision Date: 04 April 1938
• Docket Number: No. 125.,125.
• Parties: FITZCHARLES v. MAYER et al.
• Court: Michigan Supreme Court

284 Mich. 122

278 N.W. 788

FITZCHARLES

v.MAYER et al.

No. 125.

Supreme Court of Michigan.

April 4, 1938.

Action by Charles Fitzcharles against John Mayer, George Roberts, Robert Adcock, and another to recover for injuries sustained in an automobile collision. Judgment for plaintiff, and the named defendants appeal.

Judgment affirmed.Appeal from Circuit Court, Berrien County; Fremont Evans, judge.

Argued before the Entire Bench.

Burns & Hadsell, of Niles, for appellants.

White & White, of Niles, for appellee.

POTTER, Justice.

Plaintiff sued defendants to recover damages for injuries sustained in an automobile collision. From judgment for plaintiff, defendants Adcock, Mayer, and Roberts appeal.

Adcock was the driver of a taxicab owned and operated by Mayer and Roberts, copartners. At the time of the accident he was driving one of their taxicabs on company business. Plaintiff was driving a Ford coupé, and defendant Harper an Oldsmobile. The collision resulting in plaintiff's injuries occurred December 31, 1936, on the paved highway between St. Joseph and Benton Harbor. In plaintiff's car with him were his wife and two sons. He was driving westerly between the north street car tracks and the northerly edge of the pavement and could see approximately 1,000 feet ahead. Defendant Harper was driving easterly at from 50 to 60 miles an hour in violation of law. The taxicab had been driven from Benton Harbor with a passenger to the St. Joseph Fisheries on the north side of the road 165 feet west of the river bridge. It stopped at the Fisheries' office, which the passenger visited, and after the passenger re-entered the taxicab Adcock started the cab. There was testimony plaintiff saw the taxicab and saw Harper's car coming at a high rate of speed. The taxicab made a U-turn ahead of Harper's car, which the testimony indicates was going about 60 miles an hour, and Harper, in trying to avoid hitting the taxicab, swerved his car to the left and hit plaintiff's car head on causing plaintiff's injuries.

Plaintiff claims the accident was caused by the concurring negligence of Harper and Adcock. Appellants claim Harper's negligence was the sole cause of the accident and that plaintiff was negligent in not observing defendant Harper and turning to the right to avoid the collision.

At the close of plaintiff's case, appellants made a motion for directed verdict on the ground plaintiff was guilty of contributory negligence in driving with four persons in the seat, failing to turn to the right when a collision was imminent, and because there was no proof of appellants' negligence, and the accident occurred by reason of the concurring negligence of Harper and plaintiff, and it could not be reasonably anticipated a collision would result from Adcock's action. Defendant Harper moved for a directed verdict on the ground the proof showed he was driving carefully and Adcock's U-turn created a sudden dangerous emergency requiring immediate action and that in seeking to avoid collision with the taxicab his car collided with that of plaintiff; that plaintiff was guilty of contributory negligence in not turning to the right, in driving with four in the seat, and with but one hand on the steering wheel. The court reserved decision under the Empson Act, Pub.Acts 1915, No. 217, Comp.Laws 1929, §§ 14531-14534, defendants put in their testimony, the motions were renewed at the close of all the testimony, and the case submitted to the jury resulting in a verdict for plaintiff. There was motion for judgment notwithstanding the verdict, which was overruled, and judgment entered.

If appellants' motion made at the conclusion of plaintiff's testimony was good, it should have been granted. 3 Comp. Laws 1929, § 14307; Johnston v. Cornelius, 193 Mich. 115, 159 N.W. 318. A motion by defendants was made at the conclusion of all the testimony for a directed verdict, and in considering the case we must take the testimony in its aspect most favorable to plaintiff. Heintzelman v. Pennsylvania R. Co., 260 Mich. 688, 245 N.W. 548. The same rule applies in the consideration of the case on appeal. Patterson v. Thatcher, 273 Mich. 597, 263 N.W. 882;Berke v. Murphy, 280 Mich. 633, 274 N.W. 356.

Plaintiff was where he had a right to be, and it was a question of fact whether he was guilty of contributory negligence. Lawrence v. Bartling & Dull Co., 255 Mich. 580, 238 N.W. 180;Patterson v. Wagner, 204 Mich. 593, 171 N.W. 356. It is not shown the number of passengers in the front seat, or the fact that at the time of the impact plaintiff had but one hand on the wheel, contributed to the injury. Whether such action upon the part of plaintiff did so or not was a question of fact for the jury. It could not be said as a matter of law plaintiff had sufficient opportunity to turn to the right and avoid the collision.

There was proof Adcock saw Harper's car coming toward him at 60 miles an hour but took a chance on making the U-turn in front of him. The question, whether he should have taken that chance, was for the jury. Conely v. McDonald, 40 Mich. 150;Mynning v. Detroit, L. & N. R. R. Co., 64 Mich. 93, 31 N.W. 147,8 Am.St.Rep. 804;Chamberlain v. Detroit Stove Works, 103 Mich. 124, 61 N.W. 532;Yacobian v. Vartanian, 221 Mich. 258 190 N.W. 641;Burt v. Detroit, G. H. & M. Ry. Co., 262 Mich. 204, 247 N.W. 157.

There was no proof plaintiff's having four persons in the seat had any causal connection with the collision. Syneszewski v. Schmidt, 153 Mich. 438, 116 N.W. 1107.

We cannot say the court erred in denying a new trial. Patterson v. Thatcher, 273 Mich. 597, 263 N.W. 882.

To hold appellants, there must have been testimony indicating Adcock ought reasonably to have foreseen a probability of accident as a result of making the U-turn in front of the speeding Harper. Charlebois v. Gogebic Railroad Co., 91 Mich. 59, 51 N.W. 812;Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113, 190 N.W. 759.

It is not necessary the collision with plaintiff's automobile be the usual necessary and inevitable result of Adcock's action. 45 C.J. pp. 911, 913, 914. We discover no error in the refusal of the trial court to give defendants' request to charge, nor in the trial court's charge in this respect.

There may be two proximate causes of an accident. Grimes v. Bowerman, 92 Mich. 258, 52 N.W. 751;Welch v. Jackson, etc., Traction Co., 154 Mich. 399, 117 N.W. 898;Baker v. Michigan Central R. Co., 169 Mich. 609, 135 N.W. 937;Banzhof v. Roche, 228 Mich. 36, 199 N.W. 607;Moffit v. Endtz, 232 Mich. 2, 204 N.W. 764;Camp v. Wilson, 258 Mich. 38, 241 N.W. 844.

The jury, under the facts, found defendants jointly liable. Under the rule established by the cases above...