Garton v. Powers, 62.

• Decision Date: 02 December 1930
• Docket Number: No. 62.,62.
• Parties: GARTON v. POWERS.
• Court: Michigan Supreme Court

252 Mich. 442

233 N.W. 373

GARTON

v.POWERS.

No. 62.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Allegan County; Fred T. Miles, Judge.

Action by Fred Garton against Harold Powers. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before the Entire Bench. Mason, Alexander & McCaslin, of Grand Rapids, for appellant.

Leo W. Hoffman and Clare E. Hoffman, both of Allegan, for appellee.

McDONALD, J.

This is an action to recover damages for injuries received in an automobile collision. The plaintiff was riding in an automobile owned and driven by the defendant, Harold Powers. They were driving on Edgewater boulevard in the city of Cleveland, Ohio, and had reached a point at its intersection with Clifton avenue. The defendant stopped his car, turned to the left, and drove north across two lines of traffic directly in front of another car coming across the center of the street from the east. A collision followed in which the plaintiff was seriously injured. He recovered a verdict of $4,000, on which judgment was entered. The defendant has brought error.

In the first question discussed in his brief, the defendant claims that it was error for the trial court to permit the plaintiff to exercise a peremptory challenge to a juror after he had expressed himself as satisfied with the jury and after the defendant had exhausted his peremptory challenges.

This was not error. The right to exercise a peremptory challenge continues until the jury is sworn. People v. Rich, 237 Mich. 481, 212 N. W. 105.

Error is assigned on the refusal of the court to direct a verdict in favor of the defendant.

There was no evidence of contributory negligence, and the evidence as to defendant's negligence was properly left to the jury. His own testimony on this question would seem to be decisive. He testified: ‘When I though I had a chance to cross the street, I started to turn across and go to the north, but before I got across I was hit by this car which was coming from the east. I didn't see this fellow coming from the east until just before he hit me. It was daylight and there was no obstruction ahead of me that I saw. I simply turned to the left and he hit me. He was on his own right half of the street when he hit me. I didn't put on the brakes at any time. Just before I started to cross the street Mrs. Garton said, ‘You will never make it.”

It was the defendant's duty to take a proper position in the intersection and to wait for approaching traffic to pass before attempting to cross. If he had done so and had kept a proper lookout, he would have seen the car coming from the east and could have avoided a collision. Mrs. Garton, who sat beside him, saw...