Funk v. Tessin

• Decision Date: 06 April 1936
• Docket Number: No. 46.,46.
• Citation: 266 N.W. 362,275 Mich. 312
• Parties: FUNK v. TESSIN.
• Court: Michigan Supreme Court

275 Mich. 312

266 N.W. 362

FUNK

v.TESSIN.

No. 46.

Supreme Court of Michigan.

April 6, 1936.

Action by Elva Funk against Fred M. Tessin. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench.

N. A. Cobb, of Battle Creek, for appellant.

George A. Winkler, of Battle Creek, and Kelley, Sessions, Warner & Eger, of Lansing, for appellee.

POTTER, Justice.

Plaintiff sued defendant to recover damages occasioned by being hit by defendant's automobile. From a judgment for defendant, plaintiff appeals.

Plaintiff claims that at about 12:30 a. m., on February 11, 1934, while on Columbia avenue, in the township of Battle Creek, Calhoun county, Mich., she was struck by an automobile operated by defendant driving in an easterly direction and approaching plaintiff from the rear, and that as a result of being so struck she suffered injuries for which she seeks to recover damages.

In plaintiff's declaration she alleges five violations on the state motor vehicle law by defendant, and in addition six grounds of common-law negligence. She claims defendant did not have adequate brakes, did not keep such brakes in repair; failed to keep his car under control so he could stop within the assured clear distance ahead; failed to properly operate his car to stop the car to avoid hitting plaintiff; operated his car at an unreasonable and improper rate of speed; and failed to have the same equipped with proper headlights. She claims defendant failed to keep a proper lookout upon the highway; to stop when blinded by the lights of an on-coming automobile; to keep his automobile under control; to give due and timely warning to plaintiff; to make any proper effort or efforts to keep his automobile under proper control or to check the speed of the same or to stop the same to avoid collision; and to use every reasonable precaution to avoid striking the plaintiff. Defendant answered, claimed he was operating his automobile with due care and caution, denied he was guilty of any negligence, alleged he did not violate the provisions of the motor vehicle law; had sufficient brakes; had his automobile under control; that he in all things properly operated his automobile; operated it at a proper and reasonable rate of speed; his automobile was properly equipped with headlights; he was keeping a careful and proper lookout; was exercising due care and caution; there was no opportunity or occasion for giving any warning of his approach; he made every effort possible and used every precaution to avoid striking plaintiff. Defendant alleged plaintiff was guilty of negligence which caused or contributed to the injury in deliberately and intentionally in the nighttime walking out onto that portion of the paved highway where she knew, or should have known, automobiles were traveling, and failing and neglecting to observe whether automobiles were approaching from the left when she should and could have known defendant's automobile was approaching by the glare of the lights therefrom; that plaintiff negligently entered a place of danger in the middle of a block where there was no crosswalk, on a street customarily used for automobile traffic, at a point where she was required to use the greatest care and caution; that she carelessly and heedlessly disregarded her own safety and did not take the precautions for her own safety which an ordinarily prudent person would or should have taken under the circumstances. Plaintiff replied and denied she was in anywise guilty of negligence, and alleged she took due and proper precautions for her own safety.

The case was brought on for trial before the court, was submitted to a jury, which rendered a verdict of no cause of action. Judgment was rendered upon the verdict. A motion for new trial was made alleging 14 reasons why a new trial should be granted. The court entered an order denying this motion and filed findings in support thereof. Plaintiff brings the case here by an appeal in the nature of a writ of error.

Both appellant and appellee have in pursuance of Rule No. 67, § 1, stated the questions which they claim are involved. The questions are axiomatic, and should be answered as each party contends. Their answer does not control decision of the case.

Ordinarily, no point will be considered which is not set forth in or necessarily suggested by the statement of questions involved. Rule No. 67, § 1. I see northing extraordinary about this case, and think it should be affirmed for the reason the statement of appellant of questions involved does not necessarily present to the court any reason why the judgment should be reversed. My brethren, however, think this court under the circumstances should examine the reasons and grounds for appeal under which ‘no errors shall be considered by the Supreme Court that are not included in such statement.’ Rule No. 66, § 3.

What are the reasons and grounds of appeal? (1) That the verdict therein was against the great weight of law and evidence; (2) that the testimony conclusively established the negligence of the defendant; (3) that there was no evidence of contributory negligence; (4) there was no showing that the plaintiff was warned in any way of the approach of the automobile of the defendant, or had any cause to suspect its approach. We consider these four reasons alleged by plaintiff for reversal together.

Const. 1908, art. 2, § 13, provides: ‘The right of trial by jury shall remain.’ And this right of trial by jury which is to remain is the right as it existed before and at the time of the adoption of the Constitution; the right as it had become known to the previous jurisprudence of the state. Swart v. Kimball, 43 Mich. 443, 5 N.W. 635.

‘This court has no power in law cases to weigh or construe evidence and make inferences or deduce results. That jurisdiction is confined to other tribunals. Its authority in reviewing law matters is restricted to questions of law.’ Yelverton v. Steele, 40 Mich. 538.

‘We cannot weigh evidence, determine facts, or review the findings of the court below upon questions of fact.’ Holcomb v. Sayers, 173 Mich. 238, 138 N.W. 1043, 1044.

If there was conflicting testimony upon any material question in the case, plaintiff was not entitled to a directed verdict. Freeman v. Millen, 232 Mich. 271, 205 N.W. 122.

Although it is contended the verdict was against the great weight of the evidence, this question must be considered with due regard to the rule that the weight to be given the evidence was for the jury (Yacobian v. Vartanian, 221 Mich. 25, 190 N.W. 641), and that defendant gave evidence not only to dispute the claim made by plaintiff, but to support his claim that plaintiff was guilty of contributory negligence, and that thereby a case was made for the jury (Goonen v. Ann Arbor Railroad Co., 218 Mich. 502, 188 N.W. 363).

In the trial of a lawsuit, the trial judge determines the law, the jury passes upon the credibility of the witnesses, the truthfulness of their statements, and ascertains and determines the facts.

A motion for a new trial was made. This was denied and reasons given by the trial court therefor. Under Rule No. 66, § 6, decision of the trial court denying a motion for a new trial shall be reviewed by the Supreme Court. In denying plaintiff's motion for a new trial, the trial court said there was ample evidence tending to establish that plaintiff was guilty of contributory negligence if believed by the jury, and as the question of the credibility of the various witnesses is for the jury, it cannot be said that their verdict is contrary to the great weight of the evidence. This is a cogent reason for the trial court's denial of plaintiff's motion for a new trial upon this ground.

Were there disputed questions of fact involved in the case?

The accident in question occurred on a paved street. Plaintiff's declaration says nothing about the pavement; whether plaintiff was off or on the pavement at the time she was struck by defendant's automobile. Plaintiff took the stand in her own behalf and testified she was walking along the street in company with a Mr. Misner. ‘We had not been walking on the pavement. With reference to the south edge of the pavement, we walked off the pavement. The road there is dirt and cinders; hard ground. * * * I was walking on the ground out there.’ ‘I was walking to the right of Mr. Misner. I was between him and the pavement. * * * I am sure I was walking all of three feet off the pavement. * * * I was two and one-half to three feet from the edge of the pavement.’ Mr. Misner, who was with the plaintiff, testified plaintiff did not walk on the pavement, though sometimes she might have been around the edge of it.

If plaintiff's contention was correct, defendant must have driven off the paved portion of the highway and struck her when she was not on the paved portion of the highway. If defendant did this, he would be likely to be held liable for plaintiff's injuries, unless she was guilty of some contributory negligence which barred her right of recovery.

The difficulty with plaintiff's claim arises from the testimony and the situation as shown at the point of accident. It is undisputed, except by this testimony which inferentially indicates defendant's automobile must have been off the paved portion of the highway, that defendant's automobile was on the paved portion of the highway at the time of the alleged accident; that it was on the right-hand side of the paved portion of the highway, in the ruts in the snow and ice where automobile traffic usually and ordinarily passed; that defendant was not off the paved portion of the highway with his automobile at all, but operating his automobile in the place where it should under the circumstances be usually and ordinarily operated.

Earl Sutton, a deputy sheriff who was called to the place of accident, testified defendant, immediately after the occurrence...