Lemkie v. Boice, 47

• Decision Date: 08 January 1951
• Docket Number: No. 47,47
• Citation: 45 N.W.2d 288,329 Mich. 278
• Parties: LEMKIE v. BOLCE et al.
• Court: Michigan Supreme Court

Page 288

45 N.W.2d 288

329 Mich. 278

LEMKIE v. BOLCE et al.

No. 47.

Supreme Court of Michigan.

Jan. 8, 1951.

Howlett & Hartman, Pontiac, for appellant, John W. Boice.

Alexander, Cholette, Buchanan, Perkins & Conklin, Detroit, for appellant, Sheriff-Goslin Roofing Co.

Roscoe R. Martin, and Cary & BeGole, Detroit, for appellee.

Before the Entire Bench.

SHARPE, Justice.

This action arises out of an automobile highway collision. The cause was tried before a jury which returned a verdict for plaintiff.

At about 11 o'clock in the morning of April 8, 1947, plaintiff, Adalbert Lemkie, was driving a milk truck southerly on Livernois road on his was to make a delivery in Clawson, an unincorporated village. At the same time, John Boice (or Boyce), in the employ of defendant Sherriff-Goslin Roofing Company, was on his way to a job on Cutting road, a dead end street which intersects Livernois road from the east at a point 300 feet south of the Square Lake road intersection. It appears that defendant John Boice was traveling south on Livernois road followed by Frank G. Terry at a distance of approximately 125 feet and behind Terry was the plaintiff who turned to his left, passed the Terry car and kept on the left side of the highway to a distance of from 75 to 100 feet north of the Cutting road when defendant Boice made or attempted to make a left turn. At this point, the milk truck driven by plaintiff and the car driven by defendant collided.

It is the claim of plaintiff that at a point from 200 to 300 feet north of Cutting road he turned his milk truck to the left side of the highway and at a point about 100 feet north of the Cutting road defendant Boice made a turn to go left, resulting in a collision of the cars.

It is the claim of defendant Boice that there was cardboard covering a portion of the window on the driver's side of his car; that 25 feet before he turned left he signalled his intention to do so by putting his hand and wrist through an opening in the window not covered by the cardboard; that he was then traveling 8 or 9 miles per hour; that he made an observation in his rear view mirror and saw no traffic approaching except the Terry car; that he then turned left opposite the Cutting road; and that when he was about a foot over the center line, the front wheel of his truck collided with the frout right wheel of plaintiff's truck.

The cause on for trial and at the close of plaintiff's proofs, defendants made the following motion for a directed verdict: 'Both defendants move at this time for a directed verdict of no cause of action for the reason that the proofs as produced by the plaintiff indicate that he was guilty of negligence--contributory negligence--in violation the statute having to do with passing at will within one hundred feet of an intersection.'

The trial court denied the motion and the defendants submitted their evidence. At the close of all proofs, defendants again moved for a directed verdict of no cause of action on the ground that plaintiff was guilty of negligence as a matter of law. This motion was denied and the case submitted to the jury under the Empson act. Comp.Laws 1948, § 691.691 et seq.

After deliberation the jury returned a verdict for plaintiff in the amount of $11,000, following which defendants made a motion for judgment non obstante veredicto, based upon their previous motions. This motion was denied and judgment entered upon the verdict. Subsequently, defendants made a motion for a new trial for the following reasons:

'1. Because the verdict of the jury therein is contrary to law.

'2. Because the verdict of the jury therein is contrary to the great weight of the evidence.

'3. Because the amount of the verdict of the jury is excessive.

'4. Because the Court failed to give the following instructions requested by the defendants:

"VII. It is also provided by law that the driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof, and when safely clear of such overtaken vehicle shall take up a position as near the right hand edge of the main travelled portion of the highway as is practicable. Consequently, if you find that the plaintiff overtook and passed the car of the witness Terry, without returning to the right side of the road before proceeding further to overtake and pass the truck of the defendant John Boyce, and that his failure so to do contributed in any degree to cause this accident, the plaintiff would be guilty of such negligence, as would bar his recovery and your verdict must be one of 'no cause for action.' (Mich.Stat.Ann. 9.1574 [Comp.Laws 1948, § 256.314])."

The trial court denied this motion and made the following observation: 'In conclusion, the Court recalls that the defendant was operating his vehicle with a piece of cardboard completely obstructing his view in the driver's window on the left side, preventing a proper signal and hindering the defendant's view in making a left turn. The defendant's vehicle struck plaintiff's vehicle in the right side, tending to indicate this obstruction to his view was one of the causes if not the sole cause of the happening of this accident, and the Court feels that this case was properly submitted to the jury under the testimony presented.'

In appealing defendants urge that plaintiff was guilty of negligence as a matter of law in traveling on the left side of the highway approaching within 100 feet of an intersection while overtaking and passing another vehicle traveling in the same direction; and that the language in the statute 'driven to the left side' means the same as driven on the left side and in such case plaintiff would be guilty of contributory negligence as a matter of law.

In discussing this issue we have in mind that there is a dispute as to whether the collision occurred at the intersection or some distance north of it, but all agree that the collision did not occur more than 100 feet beyond the intersection.

The controlling statutory provision in effect at the time was P.A. 1939, No. 318, § 15, C.L.1948, § 256.315, Stat.Ann.1947 Cum.Supp. § 9,1575, which provides in part:

'(b) No vehicle shall at any time be driven to the left side of the highway under the following conditions:

'1. When approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;

'2. When approaching within 100 feet of or traversing any intersection or railroad crossing;

'3. When the view is obstructed upon approaching within 100 feet of any bridge, viaduct of tunnel.'

It is the claim of plaintiff that he was not guilty of negligence as a matter of law in driving to the left of the center of the...