Fitzpatrick v. Ritzenhein

• Decision Date: 07 September 1962
• Docket Number: A,Nos. 11,s. 11
• Citation: 367 Mich. 326,116 N.W.2d 894
• Parties: John FITZPATRICK, Helen Fitzpatrick, and Michigan Mutual Liability Company, a Michigan corporation, Plaintiffs and Appellants, v. William S. RITZENHEIN and Robert Ritzenhein, Defendants and Appellees. Helen FITZPARICK, Plaintiff and Appellant, v. William S. RITZENHEIN and Robert Ritzenhein, Defendants and Appellees. pril Term, 12, April Term.
• Court: Michigan Supreme Court

Page 894

116 N.W.2d 894

367 Mich. 326

John FITZPATRICK, Helen Fitzpatrick, and Michigan Mutual

Liability Company, a Michigan corporation, Plaintiffs and Appellants, v. William S. RITZENHEIN and Robert Ritzenhein, Defendants and Appellees.

Helen FITZPARICK, Plaintiff and Appellant, v. William S. RITZENHEIN and Robert Ritzenhein, Defendants and Appellees.

Nos. 11, April Term, 12, April Term.

Supreme Court of Michigan.

Sept. 7, 1962.

White & Block, Cholette, Perkins & Buchanan, Grand Rapids, for plaintiffs-appellants.

Allaben & Massie, Grand Rapids (Sam F. Massie, Jr., Grand Rapids, of counsel), for cross-plaintiffs and appellees.

Before the Entire Bench.

CARR, Chief Justice.

The automobiles of the respective parties were meeting each other and collided, the left side of each coming in contact with that of the other. There were no eyewitnesses aside from the two drivers. Each of them testified that the collision occurred on his right-hand side of the highway.

The jury found for defendants-cross-plaintiffs, returning substantial verdicts for each. Plaintiffs-cross-defendants appeal, assigning as error the court's denial of their motions for directed verdicts of no cause for action and for judgments non obstante veredicto against cross-plaintiffs, and denial of their motions for new trial. Their appeal extends only to judgments for cross-plaintiffs on their cross declarations for damages against cross-defendants, and not at all to the no-cause verdicts and judgments against plaintiffs on the claims contained in their declarations. One cross-plaintiff, William S. Ritzenhein, owner of the automobile driven by his 17-year-old son, cross-plaintiff Robert Ritzenhein, cross-appeals from the court's denial of his motion to add to his judgment interest on the amount of the verdict.

In making their motion for directed verdict against cross-plaintiffs' claims for damages, cross-defendants contended that cross-plaintiff driver should be held guilty of contributory negligence as a matter of law because of his admission on the witness stand that although he could have seen 200 feet ahead at that point, he did not see cross-defendants' approaching automobile until it was about 3 care lengths distant, at which time he noticed that it was starting to cross over onto his side of the pavement, after which it struck the left rear of his automobile. The court was correct in holding that th equestion of his contributory negligence in that respect was not one of law. It was for the jury to determine whether he failed to maintain a reasonable and proper lookout, whether an earlier observation of the approaching car would have enabled him to avoid the collision, and, hence, whether his failure to see the car sooner was a proximate cause of the accident. On a motion for directed verdict or judgment non obstante veredicto, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the opposite party. Vukich v. City of Detroit, 325 Mich. 644, 39 N.W.2d 212; Dasovich v. Longacre, 324 Mich. 62, 36 N.W.2d 215. Accordingly, accepting cross-plaintiff driver's version as true, the facts are that he was driving lawfully, on his right-hand side of the pavement; that if he had seen cross-defendants' automobile earlier, he would have seen it on its own right-hand side of the road giving no indication of impending danger, and he would not have seen it cross to his side of the road until it was only 3 car lengths distant. That was when he actually did see it do so, an then he had a right to assume that its driver would turn it back to its own side where it belonged. It was not negligence as a matter of law for him to so assume or to fail to take steps in the short interval and distance then available to him to avoid the collision. Applicable is Essenberg v. Achterhof, 255 Mich. 55, 237 N.W. 43. There, defendant was driving on the wrong side of the road. Plaintiff, meeting him, admitted that he did not see him until only 10 feet distant. Plaintiff had judgment below. On appeal defendant urged plaintiff's contributory negligence as a matter of law for failure to maintain a proper lookout. In affirming judgment for plaintiff, this Court said:

'1. Important in discussing the question of contributory negligence is the fact that, at the time of the accident, the plaintiff was riding where he had a lawful right to ride, and that defendants were driving where they had no right to drive. The plaintiff was not required to anticipated danger from vehicles traveling toward him on that side of the road. To some extent, at least, he had a right to rely on the known fact that they usually did not travel there. Naturally he would not expect to meet automobiles where the law of the road does not permit them to travel. But, if he had looked, he would have had the right to rely on the assumption that defendants also would be looking and would steer their car to their own side of the road to avoid hitting him. These were matters for the jury to consider in determining whether his failure to look for approaching vehicles was negligence. In these circumstances, it cannot be said that he was guilty of contributory negligence as a matter of law. It was a question for the jury. Dier v. Voorhees, 200 Mich. 510, 167 N.W. 26; Leary v. Fisher, 248 Mich. 574, 227 N.W. 767; Dreyfus v. Daronco, 253 Mich. 235, 234 N.W. 587.'

See, also, to same effect: Petterson v. Jacobs, 289 Mich. 351, 286 N.W. 643; Suarez v. Katon, 299 Mich. 38, 299 N.W. 798; Odell v. Powers, 284 Mich. 201, 278 N.W. 819; Morton v. Peterman, 291 Mich. 442, 289 N.W. 208.

On appeal cross-defendants do not stress the matter of cross-plaintiff driver's failure to see their approaching car at an earlier time. Instead, in support of their charge of his contributory negligence as a matter of law, they have changed their emphasis to a claim of incontrovertible physical facts which render incredible the testimony of cross-plaintiff as to the side of the pavement on which the collision occurred. This is also the claimed basis for their contention that they are entitled to a new trial because the verdict is against the great weight of the evidence.

The so-called incontrovertible physical facts consist of the location of broken glass and debris and tire and skid marks on the highway, and location of cross-plaintiff's body and of the 2 automobiles after the accident, etc. Appellants' appendix does not bother to disclose that 2 State police officers who testified that they has seen all of this upon viewing the scene of the accident shortly after it has...