Fuller v. Magatti

• Decision Date: 14 May 1925
• Docket Number: No. 38,April Term.,38
• Citation: 231 Mich. 213,203 N.W. 868
• Parties: FULLER v. MAGATTI.
• Court: Michigan Supreme Court

231 Mich. 213

203 N.W. 868

FULLER

v.MAGATTI.

No. 38, April Term.

Supreme Court of Michigan.

May 14, 1925.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by Glenwood C. Fuller against Frank G. Magatti. Judgment for plaintiff and defendant beings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Dunham, Cholette & Quail, of Grand Rapids, for appellant.

Knappen, Uhl & Bryant and Linsey, Shivel & Smedley, all of Grand Rapids, for appellee.

FELLOWS, J.

Defendant operates the cafeteria in the Masonic Temple on Fulton street in the city of Grand Rapids. On the morning of June 21, 1923, he drove to his work in his Hupmobile touring car accompanied by his wife and one of his employês. It is his claim that he reached the Temple about 5 minutes before 8 and that he ran his car about 1 1/2 feet from the curb, cramped the wheels so they rested against the curb, put the gear in reverse, and set the brake. From the Masonic Temple to where Fulton street intersects Jefferson avenue is down grade about 4 to 4 1/2 feet per 100 feet. From where the car was left to the point of the accident was around 400 feet. On this morning plaintiff was walking on Jefferson on his way to his office. When he reached Fulton he crossed Jefferson on the south side of Fulton, and had reached the curb when he was struck by defendant's car running without a driver, and received serious injuries. The negligence counted on is the improper parking of the car.

Defendant's counsel asked for a directed verdict on the ground that no negligence of defendant was proven. It is his claim that in view of defendant's testimony he properly parked the car, and in view of the burden being upon plaintiff to establish negligence of defendant, there was nothing in the case to take it to the jury without adopting the rule res ipsa loquitur, which is not recogniaed by this court. In Burghardt v. Detroit United Ry., 206 Mich. 545, 173 N. W. 360, 5 A. L. R. 1333, this court said:

‘This court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is made’-citing authorities.

An examination of the authorities there cited will disclose the holdings of this court under varying circumstances. See, also, Ignaszak v. McCray Refrigerator Co., 221 Mich. 10, 190 N. W. 756, and authorities there cited.

Assuming then, as we should, that the happening of the accident alone was not evidence of negligence, and alone did not take the case to the jury, we approach the record to determine whether it contains testimony directly from witnesses or proven facts from which legitimate inferences may be drawn making the question of defendant's negligence one of the fact for the jury and disputing the testimony given by him. The time of the accident was an important fact in the case. Defendant claims it did not occur until 25 or 30 minutes after he left his car in front of the Masonic Temple. Manifestly if the machine remained where left on this inclined street for this length of time, this fact would be confirmatory of the claim that it had been...