Michaels v. Smith

• Decision Date: 01 December 1927
• Docket Number: No. 83,June Term.,83
• Citation: 216 N.W. 413,240 Mich. 671
• Parties: MICHAELS v. SMITH et al.
• Court: Michigan Supreme Court

240 Mich. 671

216 N.W. 413

MICHAELS

v.SMITH et al.

No. 83, June Term.

Supreme Court of Michigan.

Dec. 1, 1927.

Error to Circuit Court, St. Clair County; Eugene F. Law, Judge.

Action by Mike Michaels against Russel G. Smith and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before SHARPE, C. J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, and McDONALD, JJ. Walter Schweikart and Julien Winterhalter, both of Detroit (John Dunham, of Grand Rapids, of counsel), for appellants.

Walsh, Walsh & O'Sullivan, of Port Huron, for appellee.

SNOW, J.

Plaintiff recovered judgment against defendants for $2,500 for injuries done him and his car in an automobile collision at the corner of Military and Pine streets, in the city of Port Huron in March, 1926. Defendants group their assignments of error under four heads, which we will consider in order, stating such facts as may be necessary for an understanding of the case as we proceed.

[1] 1. Contributory Negligence.-Defendants claim the proofs clearly show the plaintiff barred from recovery because of his own negligence. As the facts must be viewed in the light most favorable to plaintiff, they will be so stated. Military street is the principal street in the city, with car tracks down its center. It is a trunk line highway. A city ordinance requires vehicles to stop before entering upon it. Another ordinance provides that at street intersections the car approaching from the right of the driver shall have the right of way. Still another ordinance requires a vehicle, when entering a main thoroughfare, to proceed at a rate of speed not exceeding 7 1/2 miles per hour.

It was on such favored road that plaintiff was driving in a northerly direction when his car was struck on its left side near the rear by defendant Esther M. Smith, who was driving her husband's car in an easterly direction on Pine street, and who was attempting to enter into and cross Military street. Plaintiff was driving at about 12 to 15 miles per hour about 6 or 8 feet east of the east rail of the tracks, and when passing the Desmond theater building be looked to his left up Pine street. He judged this was about 40 or 50 feet from Pine street, although by actual measurement the theater is 94 feet from the corner. He was approximately 70 feet from the place of the accident. He could there have seen a car approaching on Pine street 30 or 40 feet west of the west curb of Military street, or as far as 80 feet west of the point of collision. He then proceeded north, looked ahead for possible danger to pedestrians at the street crossing, and also to the right. He looked again to the left just before the collision and saw defendant's carbearing down on him so as to make it impossible to avoid being struck. Does this conduct on the part of plaintiff render him guilty of contributory negligence which precludes recovery, nowithstanding the negligence of Mrs. Smith? We must decline to so hold. The location of the accident was the city's main street and in its business district. Plaintiff had the right of way across the intersection. He was compelled to watch pedestrians crossing the street, cars parked along it, and other traffic upon the road, as well as cars on Pine street. He was not bound at his peril to know that cars on Pine street attempting to cross Military would fail to obey the law. Whether he was negligent or not in the operation of his car under such circumstances was clearly for the injury under proper instructions.

2. Was the verdict against the great weight of the evidence? Defendants claim it was. To so hold we must be satisfied that the ‘testimony introduced by defendant so overwhelmingly outweighed that of plaintiff as to justify us in reversing the case on this ground.’ Romanuick v. State Bank, 235 Mich. 221, 209 N. W. 130. We are not so satisfied. While there is evidence of plaintiff's fast driving, the fact is...