Miller v. Cook, 71.

Decision Date15 March 1940
Docket NumberNo. 71.,71.
PartiesMILLER v. COOK et al.
CourtMichigan Supreme Court


Action by Earl G. Miller against Roy J. Cook and another, and Herman Stehouwer and another for personal injuries. Judgment was entered in accordance with a verdict in favor of plaintiff against defendants Herman Stehouwer and another, and a verdict of no cause of action against defendants Roy J. Cook and another, and defendants Herman Stehouwer and another and plaintiff appeal.


Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

John D. B. Luyendyk and Harry E. Rodgers, both of Grand Rapids, for Roy J. and James Cook.

Emil B. Gansser, of Grand Rapids (Paul E. Cholette, of Grand Rapids, of counsel), for Earl G. Miller.

Travis, Merrick & Johnson, of Grand Rapids, for Herman and Donald Stehouwer.

CHANDLER, Justice.

Wealthy street in the City of Grand Rapids is a main thoroughfare, 42 feet wide, running east and west at which vehicles traveling on intersecting streets are required to stop. Lafayette avenue, one of the intersecting streets, is 30 feet in width, its northerly intersection with Wealthy being farther east than the southerly intersection.

On January 18, 1938, plaintiff was walking across Lafayette avenue from east to west at the north intersection. As he was about to step to the curb on the west side of the street, he was struck and thrown against a guardrail surrounding the entrance to an under-pass as a result of a collision between an automobile owned by defendant Roy J. Cook and operated by James Cook and one owned by defendant Herman Stehouwer and being driven by his son, Donald.

The Stehouwer car had been approaching Lafayette on Wealthy from the east and the Cook car was being driven north on Lafayette across Wealthy. The automobile last mentioned was struck on the right side by the left front of the Stehouwer car, the collision occurring at a point north of the north curb line of Wealthy, if extended, and west of the center of Lafayette. The impact drove the Cook car against plaintiff, pinning him against the guardrail heretofore mentioned, and causing severe injuries.

The jury returned a verdict in favor of plaintiff and against defendants Herman and Donald Stehouwer and a verdict of no cause of action against defendants, Roy J. and James Cook. Judgment was entered in accordance with the verdict, and these appeals resulted.

Appellants Herman and Donald Stehouwer complain of several alleged errors of the court in his charge to the jury. The court charged: ‘The drivers of both the Cook and the Stehouwer cars were lawfully upon their respective highways, and each of them in the use of the respective highways was required to observe the same rules and the same laws as to the use of those highways as was the other.’

It is claimed that this charge was erroneous in that it required the driver of the Cook and Stehouwer cars to observe the same rules in the operation of their respective vehicles, despite the fact that the Stehouwer car was being operated on a through highway; that it gave the jury to understand that if Cook must stop when he arrived at the intersection, Stehouwer must also stop and that the jury understood therefrom that all rules applicable to the operation of the Cook car applied to the Stehouwer car.

The complaint, however, fails to take into consideration other portions of the charge. It cannot be examined piecemeal. Immediately following the excerpt above quoted, the court stated: ‘each was required to exercise due care in the operation of their respective motor vehicles.’

The objection is not well taken for it appears from the balance of the instructions that the jury was told that Wealthy street was a favored highway and that the driver of the Cook car was required to stop before entering the intersection. From the charge as a whole, the jury could not have understood that the rights of the two drivers...

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6 cases
  • Napier v. Jacobs
    • United States
    • Michigan Supreme Court
    • December 21, 1987
    ...Mich. 120, 125-126, 149 N.W. 1064 (1914) (statute of limitations defense waived by failure to raise it at trial); Miller v. Cook, 292 Mich. 683, 688-689, 291 N.W. 54 (1940) (absent proper motion for a directed verdict of negligence as a matter of law, the question cannot be raised on appeal......
  • Schneider v. Teppert
    • United States
    • Michigan Supreme Court
    • March 15, 1940
  • Csircsu v. Muir
    • United States
    • Michigan Supreme Court
    • November 24, 1942
    ...of the charge of the trial judge may be open to criticism, but on the whole it was a fair one and will not be disturbed. Miller v. Cook, 292 Mich. 683, 291 N.W. 54. Appellants further claim that the conduct of plaintiff's attorney in the trial of the case was so improper as to prejudice the......
  • Seymour v. Carr, s. 33
    • United States
    • Michigan Supreme Court
    • October 12, 1943
    ...way has attached the duty of making observation of existing conditions and possible precautionary action thereunder.' In Miller v. Cook, 292 Mich. 683, 291 N.W. 54, 56, plaintiff, a pedestrian, instituted suit for personal injuries against two defendants, one occupying a through street and ......
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