Molitor v. Burns

• Decision Date: 27 June 1947
• Docket Number: No. 81.,81.
• Citation: 318 Mich. 261,28 N.W.2d 106
• Parties: MOLITOR v. BURNS.
• Court: Michigan Supreme Court

318 Mich. 261

28 N.W.2d 106

MOLITOR

v.BURNS.

No. 81.

Supreme Court of Michigan.

June 27, 1947.

Appeal from Circuit Court, Antrim County; Earl C. Pugsley, judge.

Action by Milton Molitor, administrator of the estate of Nelson L. Bard, known as Dan Bard, deceased, against Peter Burns, to recover for the wrongful death of decedent resulting when he was struck by defendant's truck.Judgment for defendant, and plaintiff appeals.

Affirmed.

Before the Entire Bench.

Austin J. Spalding, of Lake City, and Robert B. Murchie, of Traverse City, for appellant.

Alexander, Cholette, Buchanan, Perkins & Conklin, of Grand Rapids, for appellee.

BUSHNELL, Justice.

Plaintiff's decedent, Nelson L. Bard, was a laborer employed in the woods near Roscommon.On June 20, 1945, at about 8:30 o'clock in the evening, Bard was driving north on US-27 with another man on their way to work in the woods.Trooper Sweet and Corporal Glassford were patrolling south toward Roscommon in a State police car.The officers noticed Bard's car coming toward them with only one headlight burning and turned around to investigate.Bard pulled off the highway and, while attempting to fix his headlight, the State police pulled up about 3 feet behind him.Trooper Sweet got out and gave him a traffic violation ticket.As Sweet returned to his car, Bard followed him, partly opened the police car door, stepped inside the angle made by the open door, and began a conversation with driver Sweet.

While Bard was talking, facing east, a truck driven by defendantPeter Burns, approaching from the south, struck the half-open door of the police car and threw Bard about 40 feet forward, his body landing in front of his own car.Bard never regained consciousness and died in the Grayling hospital at 2:55 o'clock the following morning.The Burns truck came to a stop approximately 236 feet north of the point of impact.

The police car, according to the officers, was standing on the shoulder of the road with its left front tire 22 inches from the edge of the pavement.According to Burns, the left wheels of the police car were about one foot on the pavement.The weather was clear and the pavement was dry.The accident occurred at about the middle of a straight, level stretch of highway where approaching cars could be seen a mile in either direction.

At the close of plaintiff's case, defendant, relying on Ebal v. Bruzewski, 296 Mich. 654, 296 N.W. 715, asked for a directed verdict on the ground that plaintiff had nor established Bard's freedom from contributory negligence.The trial judge ruled, however, that this question should be submitted to the jury without prejudice to a renewal of the motion following the verdict.At the close of defendant's case, plaintiff did not ask for a directed verdict but did file certain requests to charge.At the conclusion of the charge the trial judge offered another opportunity by asking counsel, ‘Is there anything I have overlooked?’After the jury returned a verdict in favor of the defendant, plaintiff made a motion for a new trial, which was denied.

On appeal, plaintiff argues that the court should have directed a verdict against the defendant as a matter of law.He contends that the jury should have been instructed that plaintiff's decedent was presumed to be free from contributory negligence except in so far as there was testimony by eyewitnesses to the contrary.He assigns as error the court's failure to instruct the jury that even though the open door of the police car did extend somewhat over the edge of the pavement, defendant was guilty of negligence in not observing the same.Finally he asserts that the verdict is contrary to the great weight of the evidence and that the court erred in denying the motion for a new trial.

Defendant testified that he had been drinking, and there seems to be no question as to his negligence.Decision turns on...