Gordon v. Hartwick
| Citation | 325 Mich. 534,39 N.W.2d 61 |
| Decision Date | 08 September 1949 |
| Docket Number | No. 53.,53. |
| Parties | GORDON v. HARTWICK et al. (two cases). |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Rollin C. Gordon and his wife, Beatrice M. Gordon, respectively, sued Don Hartwick and Joseph Kopaczewski for damages sustained in a collision of named defendant's automobile with the rear end of plaintiff husband's automobile.
From judgments of the Circuit Court of Arenac County, John C. Shaffer, J., for defendants, plaintiffs appealed.
The Supreme Court, Reid, J., reversed the judgment in the case of plaintiff wife and affirmed the judgment in the case of plaintiff husband, holding that the evidence sustained the trial court's finding of plaintiff husband's contributory negligence, but not a finding of defendant Kopaczewski's negligence in driving defendant Hartwick's automobile in the case of plaintiff wife.
Before the Entire Bench.
Nuel N. Donley, Big Rapids (Worcester & Worcester, Big Rapids, of counsel), for plaintiff and appellant.
Heilman & Purcell, Saginaw, for defendants and appellees.
These two cases were consolidated for purposes of trial. In each case separately the plaintiff appealed but the appeals are submitted on one record. The plaintiffs in the two cases are husband and wife. Jury trial was waived in each case and the cases were tried by the court without a jury. In each case the finding and judgment was in favor of the defendants.
The cases were brought to recover damages claimed by the plaintiffs to have been sustained by reason of an automobile owned by defendant Hartwick and driven by defendant Kopaczewski, colliding with the rear end of an automobile driven by plaintiff Rollin C. Gordon. The accident occurred on US 23 about a mile north of Kawkawlin in Bay county at about noon on September 24, 1946. The day was bright and clear and the pavement was dry. At the point of the accident there is a three lane highway of cement, which was level and straight. The highway consisted of three 11 foot slabs, a total of 33 feet in width, with gravel shoulders about 8 or 10 feet wide. Plaintiff Rollin C. Gordon was driving his Oldmobile two-door sedan south, accompanied by his wife, plaintiff Beatrice M. Gordon.
Plaintiffs claim that Gordon was driving in the west lane, had been going 40 to 45 miles per hour, and slowly decelerated to a speed of approximately 20 miles per hour; that shortly before the accident Mr. and Mrs. Gordon intended to stop at a place of business along the highway to look at some stones about which they knew, which were apparently displayed there for sale purposes; that as they approached this place Gordon slowed down his automobile and intended to park it on the west shoulder of the highway south of a car with two-wheel trailer attached which had been parked on said shoulder near the pavement in front of the place where the stones were on exhibition. Plaintiffs claim that as Gordon prepared to turn off the pavement on the right shoulder, the Gordon car was struck in the left rear by the defendant car with so great violence that the back of the Gordon car and the gasoline tank were stove in and articles in the trunk of the car were smashed up against the back seat and that the front seat of the Gordon car was broken from its attachment to the floor of the car, that each of the two plaintiffs suffered great personal injuries, and that the Gordon car was driven so that it turned at a right angle to the pavement and struck the pile of stones which were on display.
Plaintiffs claim that the collision was caused by the sole negligence of defendant Kopaczewski, who was driving the car owned by Hartwick at an excessive speed, that Kopaczewski did not have his car under control so as to be able to stop within the assured clear distance ahead, did not observe the proper rules for passing the Gordon car, and did not do everything he could have done to avoid the accident. Plaintiffs further claim that defendant Kopaczewski was arrested because of his negligent actions on this occasion and paid the costs of prosecution, as an acknowledgment that he had violated the rules of the road.
Defendants claim that plaintiff Gordon was negligent because he did not observe that defendant car was near behind him when he slowed for the purpose of observing the pile of stones, that after applying his brakes, the Gordon car swerved to the left into the middle lane at least so far that the front of the car was 3 feet into the center lane, and defendants claim this blocked off the defendant driver so that he could not pass the Gordon car, because of the approach of a car from the south on the easterly lane.
The trial judge found that the left side of the plaintiff's car was a short distance over on the center lane at the time of impact, and there was no testimony of proper observation by the driver to the rear or signal before turning into such center lane. The trial judge found that each of the plaintiffs had failed to establish negligence of defendant driver and freedom of plaintiff driver from contributory negligence, and that the plaintiffs had failed to meet that burden on each of such questions. While both plaintiffs deny that their car swerved into the center lane even a few feet, still there is testimony to sustain the finding of the trial judge on the question of plaintiff Rollin C. Gordon's contributory negligence. We do not find that the testimony clearly preponderates against that portion of the finding by the trial court, and the judgment of no cause of action as to plaintiff Rollin C. Gordon is affirmed.
This leaves for our consideration the question of the negligence of defendant Kopaczewski in the case of plaintiff Beatrice M. Gordon. The negligence of Rollin C. Gordon, the driver, is not imputable to his wife, Beatrice M. Gordon. Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697.
It is necessary to consider in some detail the testimony of defendant Kopaczewski. His father-in-law Byron Hartwick was with him but was not sworn as a witness. The testimony as to defendant Kopaczewski's control of his car preceding the accident is chiefly the testimony of Kopaczewski himself, together with evidence as to skid marks on the pavement. The testimony of Kopaczewski is not self-consistent; his testimony is full of self-contradictions, so that it is difficult to find out exactly from his testimony what he did preceding the impact. However, he does say that he did not see plaintiff's car until he was 50 feet back of it. Kopaczewski testified:
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Sun Oil Co. v. Seamon
...statute applies to moving vehicles, Winslow v. Veterans of Foreign Wars National Home, 328 Mich. 488, 44 N.W.2d 19; Gordon v. Hartwick, 325 Mich. 534, 39 N.W.2d 61, and the assured clear distance can be no greater than to the rear of the first vehicle, Fugere v. Aronson, 285 Mich. 661, 281 ......
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Ter Haar v. Steele, 72
... ... Veterans of Foreign Wars National Home, 328 Mich. 488, 44 N.W.2d 19; Gordon v. Hartwick, 325 Mich. 534, 39 N.W.2d 61, and the assured clear distance can be no greater than to the rear of the first vehicle, Fugere v. Aronson, ... ...
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Linabery v. La Vasseur, s. 58-59
...striking the rear of plaintiff's vehicle makes him prima facie guilty of negligence? Plaintiffs say yes, citing Gordon v. Hartwick, 325 Mich. 534, 39 N.W.2d 61, 64, and Corbin v. Yellow Cab Co., 349 Mich. 434, 84 N.W.2d 775, 779. Gordon was tried without a jury, thus presenting no question ......
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Corbin v. Yellow Cab Co., s. 24
...clear distance' rule (C.L.S.1954, § 257.627 [Stat.Ann.1952 Rev. § 9.2327]), and is controlled by our decision in Gordon v. Hartwick, 325 Mich. 534, 39 N.W.2d 61. We find no error in the Error is also claimed of the following instruction: 'I charge you, Ladies and Gentlemen of the Jury, that......