Hartley v. A. I. Rodd Lumber Co.
| Decision Date | 29 December 1937 |
| Docket Number | No. 47.,47. |
| Citation | 276 N.W. 712,282 Mich. 652 |
| Parties | HARTLEY v. A. I. RODD LUMBER CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Bernice Hartley against the A. I. Rodd Lumber Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Appeal from Circuit Court, Monroe County; Clayton C. golden, judge.
Argued before the Entire Bench.
Eugene Rheinfrank, of Toledo, Ohio (Alexander, McCaslin & Cholette, of Detroit,and Joseph A. Navarre, Jr., of Monroe, of counsel), for appellant.
Fraser, Effler, Shumaker & Winn, of Toledo, Ohio (Golden, Nadeau & Fallon, of Monroe, of counsel), for appellee.
Plaintiff sued defendant to recover damages for personal injuries alleged to have been suffered through defendant's negligence. From verdict and judgment for plaintiff, defendant appeals.
Plaintiff claimed she was driving an automobile in a southerly direction on Highway US-23, at about 30 to 35 miles an hour, on her own side of the highway, and that at no time did she cross the center line of the highway or encroach upon the easterly traffic lane thereof; as she approached Hickory Park, located on the westerly side of Highway US-23, she observed a truck coming from the southerly direction belonging to the defendant and being operated by the president of defendant company; there was a driveway leading off the westerly side of the highway into Hickory Park, and defendant's driver intended to deliver a load of lumber with which the truck was loaded to the proprietor of the park; when defendant's truck was about 25 feet south of plaintiff's automobile, its driver, without any signal or warning, started to make an intended left turn and, after he had turned into the westerly traffic lane directly into plaintiff's path, he sought to swing his truck to the right in an effort to get back on his own side of the road. Plaintiff testified the truck was crossing directly in front of her at an angle of 45 degrees and with its right side toward her when the two vehicles came into collision; that the point of first contact between her automobile and the truck was when the left front of her car and the right front fender of the truck came together; that defendant was occupying approximately half of the west traffic lane.
Defendant's version of the affair is that as he came to a point opposite Hickory Park he started to make a turn to the left to deliver the load of lumber at the park and saw plaintiff approaching rapidly from the opposite direction; that he stopped his truck on his own side of the road but with the left front wheel a few inches over the center line of the pavement. He testified he was practically stopped; that the truck might have rolled six inches; as he was waiting for plaintiff to pass, she suddenly swung her car sharply to the left and drove it almost head-on into the front of his truck; the points of first and most violent contact were the right front corner of plaintiff's car and the left front corner of the truck, the truck, however, being driven backward 20 feet, coming to rest facing the north and parallel with the pavement, with its right side just off the east edge of the paved portion of the highway, while plaintiff's car rebounded four or five feet and came to rest facing east or southeast, with the rear wheels off the west edge of the paved portion of the highway.
The facts contended for by the respective parties are in direct conflict. At the close of all the testimony, defendant tendered special questions and requested the court to instruct the jury to return answers to each. These special questions and the answers thereto were as follows:
The theory of plaintiff as shown by the declaration and transcript of the testimony, with one exception hereinafter mentioned, was planted upon the claim defendant turned unexpectedly into her path and she hit the right front fender of defendant's truck with the left front fender of her automobile. The exception is that defendant introduced some pictures showing the right front portion of the truck was intact after the accident. Plaintiff's counsel, after he had rested his rebuttal, put plaintiff on the stand and asked her if, after Mr. Rodd had turned into her path, she saw him turn his truck to the right in an effort to get back upon the right side of the road. Plaintiff said, ‘Yes.’ Defendant objected to this as improper and objectional rebuttal. The court allowed the testimony. Plaintiff's counsel had laid the foundation therefor by asking Rodd upon cross-examination whether he did not, after swinging over to the lefthand or wrong side of the road, attempt to swing his truck to the right and back on to the right side of the road. The order of proof under the circumstances was in the sound discretion and judgment of the trial court. Brown v. Marshall, 47 Mich. 576, 11 N.W. 392,41 Am.Rep. 728;Hoffman v. Harrington, 44 Mich. 183, 6 N.W. 225; 10 Enc. Evidence, p. 640; 4 Wigmore on Evidence 2d Ed., § 1877.
The photographs introduced in evidence by defendant showed the right side of defendant's truck was not damaged; the left front end of the chassis on the left front side was bent to the right; the headlight of plaintiff's automobile was imprinted in the radiator of defendant's truck, as stipulated by counsel.
The jury, in answer to the special questions, found controlling facts contrary to the material allegations of plaintiff's declaration, to her testimony on her examination in chief, and contrary to the facts as stipulated by counsel.
Plaintiff calls attention to Bates v. Franson, 276 Mich. 79, 267 N.W. 595, 596, where it is said: ‘Unfortunately, physical science does not furnish us with any satisfactory rules by which we may deduce with any certainty from physical facts after the collision just what occurred immediately prior to and during the impact.’
In the case, the language used was in relation to skid marks on the surface of the road testified to by one side and controverted by the other.
The photographs involved remain unvarnished testimony of what took place. The reception thereof in evidence was proper. It was only after defendant introduced these photographs that plaintiff's counsel attempted to change the theory upon which he based recovery by placing plaintiff upon the stand, after he had rested the rebuttal testimony, to testify defendant attempted to turn to the right after swinging in front of her. The obvious purpose of this was to put before the jury the possibility of contract between her car and the left front end of ...
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