Knoor v. Borr, 1

• Decision Date: 02 June 1952
• Docket Number: No. 1,1
• Citation: 334 Mich. 30,53 N.W.2d 667
• Parties: KNOOR v. BORR et al.
• Court: Michigan Supreme Court

Page 667

53 N.W.2d 667

334 Mich. 30

KNOOR v. BORR et al.

No. 1.

Supreme Court of Michigan.

June 2, 1952.

Leo J. Henry, Grand Rapids (Harold Knoor, Grand Rapids, of counsel), for plaintiff and appellant.

Mitts & Smith, Grand Rapids, for defendants and appellees, Harold Borr and Pauline Borr.

Arnold Levandoski, Grand Rapids, for defendant and cross-appellant.

Before the Entire Bench.

CARR, Justice.

Plaintiff brought this suit in circuit court to recover damages for injuries to his person and his property suffered in a traffic accident. It was his claim, as set forth in his declaration, that defendant Harold Borr and defendant Jack Rowe were guilty of concurring acts of negligence resulting in the automobile of Rowe striking and injuring plaintiff and his vehicle. Said accident happened in the early morning hours of August 28, 1949. Plaintiff was at the time driving on US-16 in a westerly direction about five miles east of Cascade, in Kent county. Defendant Harold Borr was operating an automobile immediately preceding that of plaintiff, which was owned by himself and the defendant Pauline Borr. A short distance ahead of the car of defendants Borr was a truck or tractor to which was attached a trailer.

Plaintiff alleged in his declaration that defendant Harold Borr while ascending a hill undertook to pass the truck and trailer, and that in doing so he drove across the center line of the road so that his automobile was entirely on the south side, that is, in the eastbound lane of traffic. The pavement at such point was 20 feet in width. It was plaintiff's claim that at the time an automobile driven by defendant Rowe came over the crest of the hill at a high rate of speed, that Rowe was blinded by the lights from Borr's vehicle, which was a short distance ahead of him and blocking the south side of the pavement, that as a result defendant Rowe lost control of his automobile, struck the tractor or trailer, or both, and then crashed into the car driven by plaintiff. Defendant Borr had in the meantime returned to the north side of the pavement ahead of plaintiff's vehicle. As a result of the impact plaintiff claimed that he sustained severe personal injuries, that his automobile was damaged beyond repair, and that he also sustained other property loss.

The case was tried before a jury in circuit court, plaintiff asserting liability on the part of defendants Mr. and Mrs. Borr as well as defendant Rowe. At the conclusion of his proofs counsel for defendants Borr moved for a directed verdict in their favor, such motion being based principally on the claim that no negligence on the part of defendant Harold Borr had been shown. The motion was denied. Following the introduction of defendants' proofs a motion for directed verdict was made on behalf of Mrs. Borr, and was granted on the ground that she was not liable for possible negligence on the part of her husband and that such liability could not be predicated on her part ownership of the car. A motion was also submitted and granted for a directed verdict in favor of defendant Harold Borr. The case was then submitted to the jury against defendant Rowe alone, the jury being told that Mr. and Mrs. Borr were not liable. A disagreement resulted. Plaintiff's motion for a new trial against defendants Borr was denied, and he has appealed.

The principal question at issue in the case is whether the trial court was correct in directing a verdict as to defendant Harold Borr. A verdict having been directed against plaintiff, the testimony and the legitimate inferences therefrom must be construed as favorably to him as is reasonably possible. Dasovich v. Longacre, 324 Mich. 62, 36 N.W.2d 215; Vukich v. City of Detroit, 325 Mich. 644, 39 N.W.2d 212. It was his claim on the trial and testimony was offered tending to show that defendant Borr pulled entirely out of the lane of westbound traffic and was on the south side of the road as Rowe's automobile came over the crest of the hill up which the tractor and trailer were proceeding, that the Borr car occupied the eastbound traffic lane, and that the lights were of such intensity as to blind defendant Rowe, causing him to lose control of his vehicle. On behalf of plaintiff it was insisted that Borr and Rowe were guilty of acts of negligence that together resulted in the collision of Rowe's car with that of plaintiff, and that in any event the negligence of defendant Borr was a proximate cause of the accident.

As a witness in his own behalf, plaintiff testified in part as follows:

'Q. You say you suddenly saw Mr. Borr's car get on the left side of the lane. You mean that he pulled over on the left lane of the highway? A. The left land of the highway. That would be the southern part of the highway, the highway running west.

'Q. Was he completely over on the left lane of the highway? A. He was completely over and attempted to pass the truck.

'Q. You mean he had pulled up alongside the truck when you say he attempted to pass? A. He started to pull up next to it. I didn't say he was way toward the front of the truck. He was just at the rear half of the truck there attempting to pass the truck.'

On cross-examination he gave the following testimony:

'Q. What you saw Mr. Borr do ahead of you was swing out and swing right back? A. No, he was completely out; he put on his brakes and came back.

'Q. Now, Mr. Borr's car was following behind this truck in a perfectly normal way up to the time it turned out, wasn't it? A. He wasn't--he was trying to pass it. I mean--Mr. Borr's car wasn't following behind this truck in a perfectly normal way up to the time it turned out--he was trying to pass it. * * * When he turned out I wasn't close enough to see any car in front of him going the other way, my vision was completely blocked by Mr. Borr's car and the truck. I didn't see any headlights coming when he turned out. Reflection is all I saw. I saw the reflection about the same time that he turned out, I would say.

'Q. And just as soon as you saw the reflection of the lights, he swung back on his own side of the road, didn't he? A. No. That is what alarmed us.

'Q. How far did he travel when you could see those lights on the opposite side of the road coming the other direction with this car there; how far did he travel? A. I don't know how many feet he traveled. I would say that he traveled a quarter of the distance of the semi-trailer on the other side of the road. Possibly eight or ten feet. The truck was moving all of the time.'

Plaintiff's witness Ernest Van Dam, who was a passenger in plaintiff's car, in testifying to his observations immediately preceding the impact, said:

'I was looking ahead when he started to pass. I didn't see a vehicle coming from the other direction at that time. All I saw was the reflection of lights over the crest of the hill. They were shining up in the air. It was raining that evening. I didn't see the headlights; I saw the reflection. I wouldn't know where the car coming from the opposite direction was when I saw the reflection. Before Mr. Borr started to pass I could have seen down the left-hand side if I had looked but I didn't look. The first time I looked was after he was out there, and after he was out there alongside the truck, all I could see was some reflection of lights that were shining up in the air down the road some distance. I did not hear a crash immediately afterwards. It was a matter of seconds. I can't say how many seconds. A car traveling 60 miles an hour goes over 80 feet a second. I can't determine how fast this car was traveling. We probably traveled 200 or 300 feet possibly during that interval, and we traveled that 200 or 300 feet while Mr. Borr's car was on the left-hand side of the highway with these lights reflecting up in the air in front of us.'

The witness further stated, on re-cross examination:

'The last time I saw the Borr car and the trailer before the impact was when they were right side by side completely blocking the entire highway and the only opening was the shoulder between the guard rail and the cement and at that time I could see just the reflection of headlights up in the air of this car coming towards me. You would just see the beams, like somebody shining a flashlight. We didn't see them over the Oldsmobile or anything. I do not know whether the Oldsmobile had its top up or down, I don't remember. The hill where this accident happened is upgrade for quite a ways and the hill is high enough so that it would be over the top of a regular car at the base of this hill. The Oldsmobile started to pass on the hill where the yellow marks were. The yellow marks were on the north side of the center-line. I looked that night. I possibly could be mistaken but I doubt it. I have never gone back since to see if there were yellow marks on that highway.'

Defendant Rowe was called by plaintiff for cross-examination. The following excerpts from his testimony indicate his claim as to how the accident happened and defendant Borr's connection therewith.

'When I reached the top of the hill I blinked my lights and the truck blinked its lights and right afterwards there was another set of lights on the opposite side of the road from the truck. That other set of lights was parallel to the truck and was on the south portion of the highway on which I was traveling. I was driving east on the south portion of the highway and that other set of lights was on the south portion. At that time I was driving at least 50 miles an hour and I was just starting to go down the hill. When I first saw this other set of lights on my said of the highway I blinked my lights just as fast as I could, thinking that the other car was going back in. I thought for a second he had just passed.

'Q. Just a moment, let me ask you this question before you go on. How far away from you was this truck and the other set of lights, when you first saw it? A. I would say when I first met the truck, I was...