Fuller v. King

• Decision Date: 26 May 1953
• Docket Number: 11650.,No. 11649,11649
• Citation: 204 F.2d 586
• Parties: FULLER v. KING et al. (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

204 F.2d 586 (1953)

FULLER v. KING et al. (two cases).

Nos. 11649, 11650.

United States Court of Appeals Sixth Circuit.

May 26, 1953.

Leroy G. Vandeveer, Detroit, Mich., and Louis Granat, Brooklyn, N. Y., for appellants.

George H. Cary, Detroit, Mich., Cary & BeGole, Detroit, Mich., on brief, for appellee Thomas E. King.

A. Albert Bonczak, Detroit, Mich., James S. Shields and Leon H. Harman, Detroit, Mich., for appellees City of Detroit, St. Rwys. and William Bettinger.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellants, Charles A. Fuller and Estelle Fuller, his wife, filed separate actions in the District Court to recover damages from the appellees, Thomas E. King, City of Detroit and William Bettinger, for injuries caused by being struck by an automobile which was being driven by the appellee King. By agreement, the actions were tried together. The jury returned separate verdicts of no cause of action, upon which judgments were entered in favor of the appellees. The appeals were consolidated and have been heard upon a single record.

The evidence goes into great detail with respect to the scene of the accident and the events leading up to it, but the following statement is sufficient for the purposes of this opinion.

The accident occurred on Meyers Road just south of its intersection with West Seven Mile Road, in Detroit, Michigan. Meyers Road runs north and south and is fifty feet wide at the intersection. West Seven Mile Road runs east and west and is 52 feet wide on the west side of the intersection and 60 feet wide on the east side. On the southeast corner of the intersection is a large parking lot of the Royal Theatre that extends from the corner east about 400 feet and south about 353 feet, with north and south entrances into Meyers Road, south of the intersection. Immediately east of the east end of this parking lot and facing on West Seven Mile Road is the Royal Theatre. On each of the four corners of the intersection there is a traffic-controlled signal light located on a standard. On the evening of October 15, 1948, Mr. and Mrs. Fuller attended the movies at the Royal Theatre. They left the theatre shortly after midnight and walked west on the sidewalk on the south side of Seven Mile Road for the purpose of crossing Meyers Road and going to a parking lot on the west side of Meyers Road where they had parked their car. Mr. Fuller testified that when he was within five or ten feet of the intersection he looked at the traffic light and saw it was green; he glanced to the south and saw the headlights of an automobile from 400 to 500 feet south of the intersection with no standing or moving traffic in between; he looked to the north in which direction he could see approximately 300 feet and saw no vehicle or lights; the traffic light was still green as they stepped off the curb; after stepping into the street and proceeding toward the west curb and when he was about midway between the east side and the center of Meyers Road, the traffic light changed to amber; at that time he looked to the north and saw a bus of the Department of Street Railways of the City of Detroit, which was being driven by appellee Bettinger, about 150 or 175 feet north of the intersection, moving south; he and Mrs. Fuller stopped when they reached the center of the street with Mrs. Fuller on Mr. Fuller's left arm, at which time the light had turned to red, and he continued to watch the approaching bus; the traffic signal light was then green in favor of the bus proceeding south through the intersection; from 35 to 50 feet from where the Fullers were standing the bus suddenly changed its course and swerved to the left in the general direction of where they were standing and at an angle of about 15 to 20 degrees, headed directly toward them, traveling at a speed of from 30 to 35 miles per hour, without blowing its horn or applying the brakes; Mr. and Mrs. Fuller were forced back one or two steps to avoid being struck by the bus when it was about 4 or 5 feet from them, and which was about at the center line of the street as it passed them; and in so stepping back they were hit by the car of the appellee King which was proceeding north on the east half of Meyers Road, and of the approach of which he had no warning, by horn or otherwise.

Appellee King testified that he was driving a 1940 Dodge sedan, in good mechanical condition, going north on Meyers Road with the righthand wheels of his car about four feet from the east curb, until when about 30 to 35 feet south of the north entrance of the parking lot he slowed down to about 10 to 15 miles per hour and turned his car to the left in order to avoid a car which had proceeded partially out of the parking lot into Meyers Road and then straightened out heading due north at a speed of approximately 25 miles per hour, at which time his left wheels were about two feet east of the center line; at that time he saw that the traffic light was green for north and south traffic and also saw Mr. and Mrs. Fuller standing approximately in the center or slightly west of center in the street; after passing around the car coming out of the parking lot, there were no parked cars or traffic which prevented his bearing to the right, although he did not do so; he observed the bus some 10 or 15 feet north of the intersection and moving into the intersection and judged it to be from 2 to 4 feet from the line of the west curb; he saw it change its course when about one-third across the intersection by turning suddenly to its left so that it was pointed directly at Mr. and Mrs. Fuller; it looked like it would hit them unless they moved out of the way; he did not blow his horn or signal the plaintiffs of his approach from the south; as the bus approached at a speed of approximately 30 miles per hour and was passing Mr. and Mrs. Fuller from the north and King approached from the south, Mr. and Mrs. Fuller, who were about a foot and a half west of the center line, took a half step back involuntarily and jumped backward into the side of his car. He also stated that the clearance between the left side of the bus and the left side of his car was approximately 1½ to 2 feet.

Appellee Bettinger testified that just preceding the accident as he was driving the bus south to the intersection, at a speed of approximately 25 to 30 miles per hour, he saw that the traffic light was red and slowed down to about 10 miles per hour; when about 10 or 15 feet from the north cross-walk the light changed to green and he accelerated the speed of his bus, going through the intersection at a speed of between 20 to 25 miles per hour; he also saw Mr. and Mrs. Fuller walking toward the center of the street and stop in the center; he did not turn the bus in any direction but came straight ahead; as he passed Mr. and Mrs. Fuller the left side of his bus was approximately 2 feet from them; there was about 38 inches of clearance between the bus and King's car which was within inches of the center line of the street; there was nothing to prevent him from turning to the right, but he did not do so, and at no time did he blow his horn. He did not see the impact between King's car and Mr. and Mrs. Fuller, but saw the body of Mrs. Fuller fly up into the air through his rear view mirror when less than a bus length past where they had been standing.

Mr. Fuller suffered a broken leg and other injuries. Mrs. Fuller's injuries were very severe and permanent, and required hospitalization over a period of months and numerous operations. She suffered a complete loss of memory as to all events from the time shortly prior to the accident until a time when she was in the hospital, and was not able at the time of the trial to testify about the accident.

The foregoing evidence was sufficient to take the case to the jury on the questions of negligence and proximate cause on the part of both of the appellees, King and Bettinger, and on the question of contributory negligence on the part of the appellants, and the District Judge was correct in submitting the case to the jury under appropriate instructions with respect to those issues. Appellants seek reversal of the jury's verdict and judgment rendered thereon because of alleged prejudicial error in allowing certain evidence to be considered by the jury and alleged erroneous instructions.

The question of evidence arose out of the following circumstances: Following the accident, the appellants employed a firm of lawyers in Detroit to prosecute their respective claims for damages, and on January 31, 1949, they filed separate actions on behalf of the appellants in the Circuit Court for the County of Oakland, State of Michigan, against Thomas E. King, named therein as the only defendant. Each declaration alleged negligence on the part of the defendant and that such negligence was...