Fugere v. Aronson

• Decision Date: 03 October 1938
• Docket Number: No. 48.,48.
• Citation: 285 Mich. 661,281 N.W. 396
• Parties: FUGERE v. ARONSON.
• Court: Michigan Supreme Court

285 Mich. 661

281 N.W. 396

FUGERE

v.ARONSON.

No. 48.

Supreme Court of Michigan.

Oct. 3, 1938.

Action by John Fugere against Bernard M. Aronson for injuries sustained in an automobile collision when plaintiff attempted to pass defendant's automobile traveling in the same direction, wherein defendant filed a cross-declaration. From an adverse judgment, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Chippewa County; Herbert W. Runnels, judge.

Argued before the Entire Bench.

Ray Derham, of Iron Mountain (A. B. Davidson, of Sault Sta. Marie, of counsel), for appellant.

Hudson & Coates, of Sault Ste. Marie, for appellee.

CHANDLER, Justice.

This action grew out of an automobile collision between plaintiff and defendant which occurred in the day-time on May 19, 1937, on highway U. S. 2, some five to eight miles south of Sault Ste. Marie. It was a clear day and the pavement was dry and the road straight and level. Both cars were traveling north, plaintiff being preceded by defendant, and it was while plaintiff was attempting to pass defendant that the accident occurred, requlting in considerable damage to both cars and injuries to both parties.

Plaintiff, by his declaration, claimed that the defendant was guilty of negligence that was the proximate cause of the accident, and that he was free from any negligence that contributed thereto. Defendant denied the material allegations in plaintiff's declaration and filed a cross-declaration, insisting that the negligence of the plaintiff was the proximate cause of the accident, and that he (defendant) was guilty of no negligence that contributed thereto.

There were no eye witnesses to the accident other than plaintiff and defendant, and as defendant claimed to have no recollection of the accident or as to what occurred immediately prior or subsequent thereto, plaintiff's version thereof must be accepted.

Plaintiff testified that when he first saw defendant the latter was driving about 55 miles per hour, and that inasmuch as he overtook defendant he must have been traveling at a speed in excess thereof; that as he approached, he noticed that defendant swerved to the left about a foot over the black center line a couple of times; that as he approached for the third time defendant was driving perfectly straight in his own traffic lane; that he then decided to pass and turned his car to the left to permit a clear view of the highway ahead, from which point he claimed he could see in front of him approximately a quarter of a mile; and, that finding the road clear, he increased his speed and took the left lane, and ‘just as I did that I saw him swing over, and I sounded the horn, and he stopped in front of me and I applied my brakes, but couldn't avoid hitting him.’

He further testified:

‘Q. About how far behind him were you when you definitely decided to go by? A. About a hundred feet.

‘Q. How far behind when you blew your horn? A. About 75 feet.

‘When I swung out to see if the road was entirely clear, I did not see anything of a sheep upon the highway. I looked carefully. I saw nothing upon the road that might interfere with safe passing. I saw the sheep only after the accident.

‘Our cars collided on the left-hand side of the highway, in the left lane. At the point of contact my left wheel was about a foot from the outside of the concrete. The part of my car which first contacted with the defendant's car was the front, right-hand side.

‘The impact sent the defendant's car a few feet ahead. He was pretty much in the same line, as far as the angle is concerned, but he was definitely in the left lane. He was ahead of my car. The first thing I did was to go to his car. He was conscious when he stepped out of the car, but I don't think he knew what he was doing.

‘Q. What indicated that to you? A. He was walking around in circles and looking on the ground, as if he was looking for something. I asked him what he was looking for, and he said he was looking for a place to land. (The defendant was employed as an officer in the Canadian Airport, which position he had held for about 18 years and during that time had flown irregularly). I asked him why he drove in front of me, and he said, ‘I hit a sheep.’ ‘Didn't you see the sheep’? and I said, ‘No’. ‘Where is it?’ He said, ‘Right over there’, and I looked across the road and there was this sheep about four feet away.

‘The sheep was right on the right-hand edge of the concrete. The sheep hit his car about the center of the radiator. The front of his car was bent in quite a little.’

Plaintiff also testified the shoulder of the road at the point of collision ‘was quite wide, about 10 feet or so. I would say you could drive on it. I think the road was level,’ and further that ‘prior to the time he started to stop and turn to the left, I did not notice any change in the speed of defendant's car. At that time the road was perfectly level and the shoulder was very flat.’

On cross examination plaintiff testified that,

‘I was going 55 when I started to pass, and then I accelerated. I passed him exceeding 50 miles an hour with my car. I swung out when I was 75 feet back of him, and when I saw the road clear ahead I took the whole thing. My brakes were in good condition and would stop my car in the usual way. My foot went to the brakes when I was about 50 feet behind the Aronson car.

‘Q. Well, you are not positive as to the distance? A. No.

‘Q. So that it was probably 75 feet, or it could vary either way? A. Yes, sir.

‘Q. You sounded your horn about 75 feet-and you were going 60 miles an hour, and he was going 50 miles an hour? A. Yes, sir.

‘Q. ‘Just as plaintiff commenced to sound his horn defendant's car swung sharply to the left’. That would be when you were approximately 75 feet behind him? A. Yes, sir.

‘Q. In other words you were 75 feet back when he turned to the left? A. Yes, about that.

‘Q. Do you know the distance in which you could stop your car, going at 75 miles per hour? A. I don't know, but I would say 50 to 75 feet.

‘Q. You had 75 feet in which to stop? Why didn't you stop? A. I did everything I could.

‘I am not positive if the car would have stopped if I had put on my brakes within that distance, but I think so. The brakes on my car were very, very good.

Q. And what would be your estimate of the speed at which you were going when you hit the defendant's car? A. I wouldn't say.

‘Q. You don't have any idea of the speed to do that amount of damage? A. No, sir.

‘Q. Anyway, there was a lot of damage? A. Yes, sir.

‘Q. You couldn't do it at 10 miles? A. Oh, no.

‘Q. Or 20? A. No.

‘Q. It must have been in excess of 30 miles an hour? A. I have no way of knowing.

‘Q. In your opinion he would be going at least 20 miles an hour? A. I would say so but at that I don't know.

‘The cars were never off the concrete nor off the shoulder. I tried to drive around his car and drive on the shoulder. I tried to drive around his car and drive on the shoulder. I had 75 feet in which to do it. I didn't get my car off the concrete; it was about a foot from the edge.

‘I don't think that he swerved to the left to avoid the sheep. He stopped in my lane, in front of me. If he were attempting to avoid an animal, I would expect him to slow down. I don't know if that is what he was doing or not. This accident was not caused by the fact that I did not observe his car slowing down. I hit him because he drove in front of my car. If I had noticed that he was slowing down I could have applied my brakes and stopped. I had 75 feet leeway. I hit that...