Marsh v. Burnham

• Court: Supreme Court of Michigan
• Citation: 211 Mich. 675,179 N.W. 300
• Docket Number: No. 15.,15.
• Parties: MARSH v. BURNHAM.
• Decision Date: 30 September 1920

211 Mich. 675
179 N.W. 300

MARSH
v.
BURNHAM.

No. 15.

Supreme Court of Michigan.

Sept. 30, 1920.

Appeal from Circuit Court, Hillsdale County; Guy M. Chester, Judge.

Action by Fay Marsh against Augustus S. Burnham. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages growing out of a collision of two automobiles. The accident happened in daylight. Plaintiff was driving his car in a northerly direction towards the city of Hillsdale, and defendant was driving in a southerly direction. When plaintiff reached the Country Club grounds, he found that the caretaker there had started a fire along the side of the road, and that the resulting smoke constituted a screen through which it was impossible to see. He testifies that he hesitated before entering the smoke screen, but finally drew his car well over to the right-hand side of the road within a few feet of the fence, and proceeded at a speed of not to exceed five miles per hour in a northerly direction; that he had gone into the screen approximately a single car length when a violent collision occurred between defendant's car and his own.

As a result of the collision, both cars were badly damaged, and plaintiff sustained very serious injuries. His left knee was so badly injured as to necessitate an operation; it was exceedingly painful, and confined him to his house for a considerable length of time. The evidence in the record indicates that he spent (or became liable to pay) $467.90 in the repair of the machine, paying a man to take his place in his store, and in doctors' and nurses' bills. He secured a verdict of $500. At the time of the trial-some seven months after the injury-he was still suffering some measurable disability from the accident.

It was defendant's contention that in approaching the smoke screen he reduced the speed of his car to six miles an hour and--

‘turned clear to the right of the beaten track as I entered the smoke, and the further I got into the smoke, the more dense it was, and once in a while the smoke would drive so that I could just discover the road for just an instant, and I was holding to the right-hand side of the road down the hill. * * * I didn't see no car or nothing until I got right onto him, and as I could see the road, I held to the right all I dared to.’

At the close of the plaintiff's case, a motion for a directed verdict was made by defendant, based upon the assertion that plaintiff, in entering the smoke, was himself guilty of such contributory negligence as to prevent his recovery. This motion was denied, and the case was submitted to the jury, with the result above stated.

Argued before STEERE, BROOKE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ.

[179 N.W. 301]

C. A. Shepard and W. D. Grommon, both of Hillsdale, for appellant.

Frankhauser & Cornell, of Hillsdale, for appellee.

BROOKE, J. (after stating the facts as above).

Defendant now reviews the case in this court under 62 assignments of error, which are argued by counsel under eight different heads.

1. Under this subdivision, defendant complains about the opening statement of counsel to the effect that defendant, in contravention of the statute (section 4816, 1 Comp. L. 1915), did not stop and give reasonable assistance to the plaintiff, and did

[179 N.W. 302]

not, for several weeks thereafter, visit him or inquire as to his condition. We are of the opinion that no reversible error is disclosed under this head.

2, 3. Errors grouped under these heads are based upon the alleged improper cross-examination of defendant by plaintiff's counsel. In such cross-examination, counsel for plaintiff endeavored to go into the private family affairs of defendant, and persisted in asking questions relative thereto, after rulings excluding them had been made by the court. This court has very consistently held that a broad latitude should be permitted counsel in cross-examination, and that the extent to which it should be permitted is addressed primarily to the sound discretion of the trial judge. A reversal is warranted only where there is a clear abuse of discretion by the trial court, or where it is apparent that in asking the questions objected to or in making offer of proof the offending counsel has acted in bad faith or where the alleged misconduct of counsel is reflected in the verdict.

The case was contested with vigor on both sides, and it must be said that counsel for plaintiff proceeded at times with more zeal than discretion; yet, in the light of the result, we cannot say that a reversal should be granted. Upon this branch of the case, many authorities are cited by counsel for both sides, and for the convenience of the profession they are here appended; People v. Thompson, 122 Mich. 411, 81 N. W. 344;Langworthy v. Township of Green, 88 Mich. 207, 50 N. W. 130;Turner v. Machine & Foundry Co., 97 Mich. 177, 56 N. W. 356; Clink v. Gunn, 90 Mich. 135, 51 N. W. 193;Kerr v. Brass Manufacturing Co., 155 Mich. 191, 118 N. W. 925;People v. Gotshall, 123 Mich. 474, 82 N. W. 274;Scripps v. Reilly, 38 Mich. 10;O'Connor v. Madison, 98 Mich. 192, 57 N. W. 105;Knickerbocker v. Worthing, 138 Mich. 224, 101 N. W. 540, and cases cited therein; Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, 64 N. W. 5.

4. Error is assigned on the admission over objection of an answer to the following question:

‘Q. Well, you can answer the question; are you as sure of that as you are of anything else that happened that day?’

Counsel for...