Mitchell v. De Vitt

• Decision Date: 07 January 1946
• Docket Number: No. 33.,33.
• Citation: Mitchell v. De Vitt, 313 Mich. 428, 21 N.W.2d 111 (Mich. 1946)
• Parties: MITCHELL v. DE VITT.
• Court: Michigan Supreme Court

313 Mich. 428

21 N.W.2d 111

MITCHELL

v.DE VITT.

No. 33.

Supreme Court of Michigan.

Jan. 7, 1946.

Appeal from Circuit Court, Clare County; Ray Hart, Judge.

Personal injury action by Catherine M. Mitchell against J. B. DeVitt, whose first name is unknown, but whose person is well known.Judgment for plaintiff, and defendant appeals.

Affirmed.

Before the Entire Bench.

Clifford A. Mitts, Jr., of Grand Rapids, for appellant.

Joseph K. Naumes, of Clare, for appellee.

BUSHNELL, Justice.

In this negligence action, defendantJames B. DeVitt was granted leave to appeal from a $500 judgment.DeVitt, who lives in Bucyrus, Ohio, was on his way to a fishing camp near Cadillac, Mich., on July 27, 1941.While traveling north on US 27, about 2 miles south of Clare, Mich., his car collided with one driven by Earl Thomas, which was turning into a driveway on the east side of the road.PlaintiffCatherine M. Mitchell, employed by Thomas, was riding with Thomas and his wife in the front seat of his car.On the Sunday afternoon in question, after completing her work at about 5 p.m., Mr. and Mrs. Thomas offered to take Mrs. Mitchell home.When they arrived opposite the Mitchell house, Thomas brought his car to a complete stop partly off the west side of the highway opposite the Mitchell drive.He waited long enough to permit two cars to pass, which were following him, and, although he noticed two other cars coming towards him from the south over the crest of a hill about a thousand feet away, he shifted gears and started across in a slanting southeasterly direction.The DeVitt car passed the car preceding it at a high rate of speed, determined by the trial judge to be about 80 miles an hour, and its front struck the rear of the Thomas car, hurling it from 30 to 50 feet, throwing all three occupants from the car, and severely injuring them.A spare tire inside the Thomas car was thrown about 100 feet on the west side of the highway.

During the cross-examination of George M. Finch, a witness produced by plaintiff, he was questioned regarding a statement he made on December 16, 1941.This statement was taken at his home in Saginaw by one Robert C. Schirmer, who had a stenographer present.Defendant's attorney in his cross-examination of Finch was using the transcript of this statement at the trial on May 19, 1943, when the court said: ‘I am inclined to think he has a right to read over these questions and answers before he is examined.'

Defendant's counsel informed the court that Finch had already seen the papers.Plaintiff then objected to ‘this method of cross-examination,’ which objection was sustained.When defendant's counsel renewed his examination and another objection was sustained, he then insisted upon amplification of the objection and, upon the court's adverse ruling, refrained from pursuing the matter further.

On appeal, defendant takes the position that Mrs. Mitchell was guilty of contributory negligence herself in failing to warn Thomas of the approaching danger after having observed the DeVitt car.He also urges that Thomas was guilty of negligence because he turned into a private driveway from the...