Lauth v. Woodruff, 48.

• Decision Date: 05 December 1933
• Docket Number: No. 48.,48.
• Citation: 265 Mich. 34,251 N.W. 344
• Parties: LAUTH v. WOODRUFF.
• Court: Michigan Supreme Court

265 Mich. 34

251 N.W. 344

LAUTH

v.WOODRUFF.

No. 48.

Supreme Court of Michigan.

Dec. 5, 1933.

Appeal from Circuit Court, Kalamazoo County; Geo. V. Weimer, Judge.

Action by Edward Lauth, administrator of the estate of Nicholas Lauth, deceased, against Guy B. Woodruff. From the judgment for plaintiff, defendant appeals.

Affirmed.

Argued before the Entire Bench.

Mason, Alexander & McCaslin and Dwight W. Fistler, all of Battle Creek (Harry C. Howard, of Kalamazoo, of counsel), for appellant.

Leo W. Hoffman and Clare E. Hoffman, both of Allegan, for appellee.

NORTH, Justice.

The highway known as U. S. 131 extends in a northerly direction from the city of Kalamazoo. Something less than a half a mile north of the city limits the Brookside Inn is located on the westerly side of this highway. In that locality the concrete surface of the road is twenty feet in width. In the early evening of August 5, 1932, defendant and two companions were proceeding in his automobile in a northerly direction from Kalamazoo along this highway, going thirty to thirty-five miles per hour, their destination being the Brookside Inn. The three were occupying the front seat of defendant's Pierce Arrow automobile. Plaintiff's decedent (hereinafter called plaintiff) and a companion mounted on motorcycles were proceeding in the same direction some distance in the rear of defendant's automobile. There are two driveways from the highway into the Brookside Inn. Defendant slowed down as he approached one of these two driveways and turned his automobile to his left in the act of driving into the premises. Just at this instant the motorcycle of plaintiff collided with defendant's automobile, striking it in the center portion of the rear end. The accident resulted in the death of Nicholas Lauth. Upon suit brought by his administrator for damages, he had judgment, and defendant has appealed.

In support of plaintiff's case, it is claimed that just immediately prior to the accident he and his companion were in the act of attempting to pass defendant's automobile. The gist of the negligence charged in the declaration is that defendant failed to keep to the right of the highway after deceased had given a suitable audible signal indicating his intention to pass; and further that, before turning from the line in which he was traveling, defendant was negligent in failing to ascertain that such movement could be made in safety and in failing to give a signal by means of his hand or arm or other device and to convey an intelligent warning to deceased who was approaching from the rear. See volume 1, Comp. Laws 1929, §§ 4703, 4711. Appellant asserts that he was entitled to judgment as a matter of law on the ground that the undisputed physical facts are such as establish plaintiff's negligence; and also because the undisputed testimony is that defendant exercised reasonable care and complied with the statutory requirements in the manner in which he was operating his automobile at the time of the accident, particularly in that he gave warning of his intention to make a left-hand turn by extending his hand and by displaying signal lights on his automobile.

Under the facts which plaintiff's testimony tends to establish in the instant case, we cannot sustain appellant's contention that right of recovery is barred because of the undisputed physical fact that plaintiff's motorcycle collided with the rear end of defendant's automobile in the manner above indicated. According to the testimony of plaintiff's companion, the latter's motorcycle immediately preceding the accident was traveling a little in the rear and somewhat to the right of the motorcycle on which plaintiff was riding. This witness testified that plaintiff by sounding a horn gave warning of his intention to pass defendant's automobile; that this was done when plaintiff was about fifty or seventy-five feet back of defendant's car, and at a time when plaintiff had veered to the left or westerly side of the highway in attempting to pass; that, after plaintiff sounded the horn and was about twenty feet from the automobile, defendant turned rather sharply to the left, and applied the brakes, at which instant the warning signal on the rear of the automobile was lighted, but that prior to that time no signal of ...