Jacoby v. Schafsnitz

• Court: Michigan Supreme Court
• Writing for the Court: NORTH
• Citation: Jacoby v. Schafsnitz, 270 Mich. 515, 259 N.W. 322 (Mich. 1935)
• Decision Date: 05 March 1935
• Docket Number: No. 27.,27.
• Parties: JACOBY v. SCHAFSNITZ.

270 Mich. 515

259 N.W. 322

JACOBY

v.SCHAFSNITZ.

No. 27.

Supreme Court of Michigan.

March 5, 1935.

Suit by George Jacoby against John Schafsnitz. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Appeal from Circuit Court, Tuscola County; Herman Dehnke, judge.

Argued before the Entire Bench.

Kern & Ransford, of Caro (Picard & Heilman, of Saginaw, of counsel), for appellant.

Orr & Orr, of Caro, for appellee.

NORTH, Justice.

This is a suit arising from an automobile accident. It was heard in the circuit court without a jury and plaintiff had judgment. Defendant has appealed.

The accident happened in the daytime, and there were no unusual conditions of traffic or highway which have a material bearing on the outcome of the case. Both plaintiff and defendant were proceeding in an easterly direction on state trunk line No. M-24, which is paved to a width of 20 feet and has reasonably wide dirt shoulders. Defendant was driving a Ford Truck the body of which extended about 14 inches further on each side than the inclosed cab. At the time of the accident defendant resided on the northerly side of this trunk line. As he approached the driveway leading into his residence he turned to his left. Just at this time plaintiff, driving his automobile, overtook defendant and attempted to pass on the left or northerly side of the highway. The two vehicles collided, the left-hand front portion of defendant's truck coming into contact with the right-hand side of plaintiff's Ford roadster. There was a cement culvert with abutments in the driveway into defendant's premises. This culvert is about 6 feet from the northerly edge of the pavement. Plaintiff's roadster came more or less into contact with the cement culvert, and incident to the collision the roadster went off the northerly side of the pavement, broke down a mail box post, and collided with a telephone pole with such force that the pole was broken and the roadster badly wrecked. Defendant's truck veered slightly to the right and went a short distance past the driveway.

The controlling questions are the negligence of defendant and contributory negligence of plaintiff. The burden of proof as to each of these issues is upon plaintiff. On both issues there is a decided conflict of testimony, and we will not encumber decision with complete recital of details. Upon careful consideration of testimony pro and con, the trial judge concluded that there was testimony of certain physical facts which tended strongly to indicate that defendant and his witnesses were not entitled to full credence. In this view of the testimony the trial court found defendant guilty of negligence, in that he did not make a proper observation to the rear for the purpose of ascertaining whether another vehicle was approaching him from the rear in such proximity that he could not with reasonable safety turn to his left and drive into his own premises. The record sustains the finding of the trial court that defendant was guilty of negligence which was a proximate cause of the accident.

On the question of plaintiff's contributory negligence, the trial judge gave consideration to the simultaneous conduct of defendantfor the purpose of arriving at a proper conclusion as to whether under the circumstances plaintiff exercised reasonable care in his attempt to pass defendant. This was not only proper, but necessary, because plaintiff's course of conduct in attempting to pass was necessarily influenced and...