Hormel's Estate v. Harris, 35
| Decision Date | 22 April 1957 |
| Docket Number | No. 35,35 |
| Citation | 348 Mich. 201,82 N.W.2d 450 |
| Parties | ESTATE OF Viola Berlin HORMEL, Deceased, by Rosetta Seabright, Administratrix, Plaintiff, Appellant and Cross-Appellee, v. Lloyd M. HARRIS and Vida M. Harris, Jointly and Severally, Defendants, Appellees and Cross-Appellants. |
| Court | Michigan Supreme Court |
Nash & Nash, Peter F. Cicinelli, Saginaw, for plaintiff-appellant.
Heilman & Purcell, Saginaw, for defendants, appellees and cross-appellants.
Before the Entire Bench.
Suit is for damages allowable under the wrongful death act for death of plaintiff's decedent allegedly due to defendants' negligence. The jury returned a general verdict for plaintiff and an answer to a special question which the trial court considered to be inconsistent therewith. From its entry of judgment for defendants non obstante veredicto, plaintiff appeals.
Decedent was a passenger on a motorcycle driven by her brother, who testified that he drove it from a parking lot along a driveway approaching, at right angles and from the northeast, a paved, two-lane highway which, at that point, ran northwesterly and sougheasterly; that he stopped the motorcycle two feet from the near, or northeast, edge of the highway, looked to his right (northwesterly) and saw no cars coming, then looked to his left (southeasterly) and saw defendants' car approaching at a point about 400 feet distant, at a rate of speed of about 50 miles per hour; that he figured he had plenty of time to enter the highway, cross the near (NE) half of the pavement in front of defendants' approaching car and get over onto the far (SW) half of the pavement and, accordingly, proceeded to do so; that after he had safely reached the center of the far (SW) half of the pavement he turned left (SE), at which time he saw defendants' car still approaching at about 50 miles per hour and 200 feet distant, with its right front wheel off its right (NE) edge of the pavement; that defendants' car travelled in that fashion for another 100 feet and just about the time when it got to him, about 40 feet away, it suddenly swerved to its left, toward him, entered his lane and struck his motorcycle, causing decedent fatal injuries. He further testified that after reaching the center of the far (SW) lane and turning to his left (SE), he had proceeded down the highway in a southeasterly direction in that lane (which was his own right-hand lane) for 'about 70 feet' before the collision occurred. Plaintiff's declaration alleges, with respect to the distance thus travelled in a southeasterly direction before the collision, that it was 'about 60 feet'; a witness for plaintiff testified once that it was 'about 60 feet' and another time that it was 'approximately 50 to 60 feet'. The above embodies plaintiff's theory, as alleged in the declaration and urged in the proofs, as to how and where the collision occurred.
The theory and claim of the devense was that defendants' automobile was proceeding northwesterly in a lawful manner on its own right-hand (NE) side of the highway and when it was approximately 30 feet distant the motorcycle suddenly pulled out from the driveway on the right and onto the highway directly in front of defendants' car, thus confronting defendants with a sudden emergency, making an accident unavoidable and causing defendant driver to apply his brakes and swerve to the left in an effort to avoid the accident; that while the motorcycle was in the act of crossing the first or northeast lane of the highway and had not turned left nor proceeded down the highway in a southeasterly direction in the southwest lane as claimed by plaintiff, it struck defendants' automobile about one and one-half feet behind the front of its right front fender; that the collision occurred directly opposite the driveway from which the motorcycle had emerged.
The special question submitted to the jury was:
'After Mr. Berlin (driver of motorcycle) came out of the parking lot, did he travel southeasterly on Highway M-15 for approximately 50 to 70...
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...Rule No. 37 (1945) is not involved in this case.2 This case was submitted during our last October term. Since then Hormel's Estate v. Harris, 348 Mich. 201, 82 N.W.2d 450, has been submitted and decided. In Hormel we unanimously ruled (348 Mich. at page 205, 82 N.W.2d 450) that a jury may n......
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Van Gilder v. C. & E. Trucking Corp.
...noted, it is obvious that rejection of plaintiff's theory must result in judgment for defendants. As we said in Hormel's Estate v. Harris, 348 Mich. 201, 82 N.W.2d 450, 453, 'Plaintiff must stand or fall on its [his] pleadings, proofs and theory of the case presented Plaintiff refers to the......
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Bauman v. Grand Trunk Western R.R., 56
...with proof. As written in Scott v. Cleveland, 360 Mich. 322, 331, 103 N.W.2d 631, 636 (quoting and following Hormel's Estate v. Harris, 348 Mich. 201, 205, 82 N.W.2d 450). 'Plaintiff must allege and prove its theory of the case, the claimed negligent acts of defendants and the manner in whi......
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Sahr v. Bierd
...which they were based not been erroneous." See, also, Anderson v. Seelow, 224 Wis. 230, 271 N.W. 844. The case of Hormel's Estate v. Harris, 348 Mich. 201, 82 N.W.2d 450, relied upon by appellant, did not purport to rule upon this issue. The questions were, therefore, properly The confusion......