Goldberg v. Koppy Tool & Die Co.

• Decision Date: 15 March 1962
• Docket Number: No. 40,40
• Citation: 365 Mich. 469,113 N.W.2d 770
• Parties: Rae GOLDBERG, Plaintiff and Appellee, v. KOPPY TOOL & DIE CO., a Michigan corporation, and Ella Koppy, jointly and severally, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 770

113 N.W.2d 770

365 Mich. 469

Rae GOLDBERG, Plaintiff and Appellee, v. KOPPY TOOL & DIE CO., a Michigan corporation, and Ella Koppy, jointly and severally, Defendants and Appellants.

No. 40.

Supreme Court of Michigan.

March 15, 1962.

Goldman & Grabow, Detroit (David F Caplan, Detroit, on the brief), for plaintiff-appellee.

George Belitsos, Detroit, John C. Quillinan, Detroit, of counsel, for defendants-appellants.

Before the Entire Bench, except SMITH and ADAMS, JJ.

SOURIS, Justice (for affirmance).

Defendants claim reversible error was committed by the trial court in failing to grant their motion for directed verdict made at the conclusion of plaintiff's proofs and in denying their motion for judgment non obstate veredicto made after jury verdict was rendered for plaintiff.

Plaintiff and Mrs. Koppy, driving a new car owned by the defendant Koppy Tool &amp Die Co., were starting their second day of a journey to Florida. As they approached Nashville, Tennessee, in the right-hand lane of a four-lane paved highway during a rain, Mrs. Goldberg warned Mrs. Koppy, who was driving that she had better stop the car because a car ahead of them had stopped behind a stopped school bus. The Koppy car failed to stop and a rear end collision with the motionless car ahead occurred, resulting in severe injuries to plaintiff.

Mrs. Goldberg testified that the Koppy car had ample room within which to stop after her warning, that it neither swerved to the vacant left lane nor to the right, that the rain did not limit visibility, and that she did not know what the car's speed was immediately before the collision. She also testified that on several occasions during the second day of the trip, before the accident, she requested Mrs. Koppy to slow down because of the rain. During the course of her cross examination she testified she did not know whether or not Mrs. Koppy attempted to apply her brakes 'because I was looking straight ahead. I couldn't see the car ahead and see what she was doing with her feet at the same time.' Counsel for defendants then read portions of Mrs. Goldberg's pre-trial testimony taken by deposition in which she had said that Mrs. Koppy did 'attempt to stop' and that she 'imagined' Mrs. Koppy had applied her brakes, although she did not see Mrs. Koppy do so. She also said in that pre-trial testimony that immediately after the accident she heard Mrs. Koppy tell others present at the scene that she couldn't understand why the car did not stop when she applied the brakes.

The only other testimony offered by plaintiff related to her injuries. At the conclusion of plaintiff's proofs, defendants moved for a directed verdict, claiming plaintiff had failed to establish a prima facie case. The trial judge reserved decision, ¹ defendants put in their proofs, and the trial judge ultimately denied the motion at the conclusion of trial.

Tennessee, where the collision occurred, does not have a statute, such as ours, ² which provides that the driver of a vehicle colliding with another from the rear shall be deemed prima facie guilty of negligence. Consequently, in order to recover, plaintiff had the burden of proving common law actionable negligence. ³ She was, of course, entitled to legitimate inferences in her favor from the facts she proved. We have held that where varying inferences legitimately may be drawn from established facts, that the duty of identifying such inferences rests upon the jury. Carver v. Detroit & Saline Plank Road Co., 61 Mich. 584, 592-594, 28 N.W. 721. See, also, Detroit & Milwaukee Railroad Co. v. Van Steinburg, 17 Mich. 99, and Kaminski v. Grand Trunk Western...