Gibbons v. Delta Contracting Co.

• Decision Date: 18 May 1942
• Docket Number: No. 69.,69.
• Citation: 301 Mich. 638,4 N.W.2d 39
• Parties: GIBBONS v. DELTA CONTRACTING CO.
• Court: Michigan Supreme Court

301 Mich. 638

4 N.W.2d 39

GIBBONS

v.DELTA CONTRACTING CO.

No. 69.

Supreme Court of Michigan.

May 18, 1942.

Action by Mike Gibbons against Delta Contracting Company for injuries sustained in an automobile collision. From a judgment for plaintiff, the defendant appeals.

Affirmed.Appeal from Circuit Court, Gogebic County; Thomas J. Landers, judge.

Before the Entire Bench.

Edward W. Massie, of Ironwood, for appellant.

Wm. G. Cloon, of Ironwood, for appellee.

STARR, Justice.

This case involves plaintiff's claim for damages resulting from an automobile collision which occurred sometime between 12:30 and 1:15 on the afternoon of August 22, 1940, on highway US-2 about one mile west of the village of Watersmeet, Gogebic county.

At the place of collision US-2 was a 20-foot cement paved highway extending east and west in a practically straight line. The view was clear for about 1,000 feet to the east and 500 to 600 feet to the west. Both drivers were familiar with the road at the point of the accident. The weather was clear. It had rained earlier in the day, and there was testimony that the pavement was ‘wet’ or ‘slightly damp.’

Plaintiff, a cement finisher, was alone in his 1930 Chevrolet sedan and was driving west on US-2. An employee was driving defendant's truck east on US-2. The truck had an empty dump box attached. Both vehicles were proceeding on their own respective sides of the highway until within 50 or 60 feet of the place of collision, which occurred on US-2 at or near the point where a private road, known as the Pat Kelly road, coming from the south, ran into but did not cross US-2. The only eyewitnesses to the accident were plaintiff, defendant's driver, and another employee of defendant (not working that day) who was riding with defendant's driver.

Plaintiff sustained severe injuries and was removed to the hospital in an unconscious condition. He was confined in hospitals for about six months and underwent three operations including a bone grafting. At the time of the trial, about nine months after the accident, he had not recovered the use of his right arm; and medical testimony indicated that the injuries to his right arm were permanent.

On September 18, 1940, plaintiff began suit alleging that he was driving west on the right (north) side of US-2; that, when defendant's truck, approaching from the west on the south side of the road, was about 60 feet from plaintiff's car, the truck turned sharply to the left (north) across the highway and collided with plaintiff's car on the north side of the highway. Defendant's answer denied negligence on its part and alleged that plaintiff was guilty of contributory negligence. It further alleged that its driver was proceeding east on the south side of the highway, that plaintiff turned his car to the left (south) directly into the path of defendant's truck, and that the accident occurred on the south side of the highway.

The case was tried before a jury. Motion for directed verdict made at the conclusion of plaintiff's proofs and renewed at the conclusion of all proofs was denied. The jury returned a verdict of $13,000 for plaintiff. Defendant's motion for new trial was denied.

Defendant appeals contending that its driver was not negligent; that plaintiff was guilty of contributory negligence as a matter of law; that the trial court erred in the admission of testimony and in his instructions to the jury; that the court erred in permitting plaintiff's counsel to make prejudicial remarks in his agrument to the jury; that the verdict was against the great weight of the evidence; and that the verdict was grossly excessive.

Plaintiff was employed by defendant in connection with a road construction project about a mile from the place of the collision. He had not worked the morning of the day the accident occurred. About noon defendant had notified him to ‘hurry up to go to work, * * * to straighten up around forms and get ready to pour concrete.’ Plaintiff was driving his own car on his way to work for defendant when the accident happened. In regard to the collision, plaintiff testified, in part:

‘Q. At the time the truck and the car came together, at what rate of speed were you driving your car. A. Eighteen to 20 miles an hour.

‘Q. Could you see the truck coming? A. Yes, I seen the truck for nearly quarter of mile.

‘Q. From the time you first saw the truck to the time the truck hit you, did the truck change its speed? A. Not that I notice, keep the same speed. * * *

‘Q. What rate of speed would you say that truck was traveling? A. I would say traveling about 50 or 60. * * *

‘Q. What side of the road were you on when you were hit? A. I was on my right hand (north) side of the road. * * *

‘Q. Tell us how the accident happened? A. Well, maybe 50 or 60 feet from me when the truck turn to my side of the road and run across center line and hit right in angle in front.

‘Q. Where were you with respect to Kelly's driveway when you got hit-was it east or west of it? A. West of Kelly's driveway, about 60 or 65 feet.’

Defendant's driver presents an entirely different version of the accident. He testified, in part:

‘Q. At that time what were you doing? A. I was driving east to town for another load of aggregate. * * *

‘Q. And did you see a car coming from the opposite direction? A. I did.

‘Q. How far away were you from that other car when you first saw it, Mr. Foster? A. I would say I seen that car over 1,000 feet.

‘Q. Which side of the road was that car on when you first saw it? A. The other car was on the north side of the road. * * *

‘Q. As you approached the intersection, tell the jury what occurred? * * * A. He (plaintiff) attempted to turn into this Kelly driveway * * *

‘The Court: Q. Tell what he did?

‘The Witness: A. He turned into this driveway and came down the highway on the south side of the road and then--

‘Mr. Massie: Q. On your side of the road? A. On my side of the road and then started to swing for the north line.

‘Q. And where did this collision take place, Mr. Foster? A. It was approximately, from 30 to 40 feet west of the Kelly driveway.

‘Q. On which side of the road, the north side or the south side? A. On the south side. * * * ‘Q. You say he turned into-appeared to turn into the Kelly driveway-at that time how far were you from him when he started to make that turn to the south side of the road? A. I should judge it would be 50 or 60 feet. * * *

‘Q. Did he give any signal or anything that he was going to turn to the south side of the road? A. No.

‘Q. Now after-did you do anything to attempt to avoid colliding with him? * * * A. I swung to the left (north) to avoid hitting this car directly. * * *

‘Q. How fast was his (plaintiff's) car going? A. He was going about the same speed I was. * * *

‘Q. That would be how fast? A. Thirty or 35. * * *

‘Q. Then, as he turned to the south, describe the course of his car before the collision? A. Well, before the collision he was driving, that would be, he would be going west on the south side of the road. * * *

‘Mr. Massie: Q. And then what did he do, trace his course? A. And after he was a little bit past the intersection (of Pat Kelly road), I swung to the north, headed toward the center line to avoid him. That is where the impact took place.

‘Q. Where did the two cars come together with reference to the Kelly driveway? A. Approximately 50 feet west. * * *

‘The Court: Q. What parts of the car and truck struck? A. The right part of the truck collided with the right part of the car. * * *

‘Q. Now, Mr. Foster, after the collision, what occurred to your truck, what happened? * * * A. After the two cars came together, the car was on the south side, Gibbons was on the south side, facing Watersmeet. * * *

‘Q. Where was your car? A. The truck was almost parallel with the Kelly driveway, and the front portion was over the center line. * * *

‘Q. Did you see this man (plaintiff) stick out his left arm, indicating he was going to turn into Kelly's driveway? A. No, I didn't.

‘Q. Did he blow his horn? A. No.

‘Q. Did you apply your brakes before this collision occurred? A. Yes, I did. * * *

‘Q. Your truck came to rest on the cement, isn't that correct? A. yes.

‘Q. Your front wheels were knocked entirely off your truck, is that correct? A. Underneath the truck. * * *

‘Q. The oil came out of your truck onto the cement? A. Yes * * *

‘Q. Your truck that you were driving and that metallic box would weigh more than three tons, wouldn't it? * * * A. I would say that truck would weigh about 6,500. * * *

‘Q. You gave no signal at any time when you were driving your truck, by horn or hand? * * * A. No. * * *

‘Mr. Massie: Q. How far did your truck go after the collision with Gibbons' car? A. Approximately 15 to 20 feet.’

The testimony was in conflict as to the location of defendant's truck after the accident. Some witnesses testified that the truck was entirely on the north side of the pavement, while others stated that the truck was headed in a northeasterly direction with the front part over the center line on the north side and the back part south of the center line. Some witnesses testified that there was oil from the truck on the north side, but not on the south side, of the pavement; also, that there were scratches on the north side of the pavement, apparently caused by the front portion of the truck sliding on the pavement after the wheels were knocked off. Other witnesses did not see the oil or the scratches on the north side of the pavement. Several witnesses testified that there was broken glass from plaintiff's car on the south side of the pavement. The dump box on the truck was knocked off and came to rest on the south side of the pavement. A witness testified that he picked up plaintiff's glasses in a case ‘on the south edge of the pavement.’

Plaintiff had held a driver's license for about seven years, but it had expired and at the time of the accident he had a driver's permit, issued by the sheriff's office,...