Manley v. Potts

• Decision Date: 21 December 1938
• Docket Number: No. 90.,90.
• Citation: 282 N.W. 862,286 Mich. 671
• Parties: MANLEY v. POTTS.
• Court: Michigan Supreme Court

286 Mich. 671

282 N.W. 862

MANLEY

v.POTTS.

No. 90.

Supreme Court of Michigan.

Dec. 21, 1938.

Action by Michael A. Manley against William Potts for injuries sustained when struck by defendant's taxicab. From a verdict and judgment for the plaintiff, defendant appeals.

Reversed.

Appeal from Circuit Court, Wayne County; Edward J. Jeffries, Judge of Recorder's Court, acting as Circuit Judge.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

Archie MacIntrye, of Detroit, for appellee.

CHANDLER, Justice.

On Armistice Day, November 11, 1935, plaintiff, together with a friend, left Carpenters' Hall located on Cass Avenue in the City of Detroit and walked east on Willis, crossed Woodward Avenue and proceeded to John R. street where he observed a parade. After the parade, they returned to the corner of Woodward and Willis, where they separated, plaintiff walking North to the intersection of Woodward and Canfield. From this point, he intended to board a northbound Woodward Avenue street car. For some unexplained reason, however, instead of boarding the car at that time he crossed the street to the southwest corner of the intersection. It was raining at the time and he entered a restaurant located on that corner in which, according to his testimony, he drank one bottle of beer. Between six and seven o'clock P. M., after waiting in the restaurant for some 30 minutes, he decided to cross Woodward to the street car loading platform or safety zone on the other side of the street. After taking five or six steps from the curb he was struck by defendant's taxicab being driven by one George Peters, resulting in injuries for which he seeks admages in this action. Plaintiff received a verdict and defendant's motion for judgment non obstante veredicto was denied as well as his motion for a new trial. This appeal followed.

Defendant produced evidence tending to show that plaintiff was intoxicated at the time of the accident in an effort to establish that his injuries were the result of his own contributory negligence. It is unnecessary to discuss this phase of the case, however, as in our opinion plaintiff failed to produce sufficient proof from which the jury could properly find defendant's servant to have been guilty of negligence at the time and place in question.

The driver of the cab was not produced by either party as a witness, and the only testimony concerning the accident was that given by plaintiff. From his testimony, all that can be learned in regard to the circumstances surreounding the accident is that he started to cross Woodward Avenue with the green traffic light and after taking five or six steps was struck by defendant's cab and immediately rendered unconscious.

A witness who assisted him after...