Noonan v. Volek

• Decision Date: 29 March 1929
• Docket Number: No. 33.,33.
• Citation: Noonan v. Volek, 246 Mich. 377, 224 N.W. 657 (Mich. 1929)
• Parties: NOONAN v. VOLEK.
• Court: Michigan Supreme Court

246 Mich. 377

224 N.W. 657

NOONAN

v.VOLEK.

No. 33.

Supreme Court of Michigan.

March 29, 1929.

Error to Circuit Court, shiawassee County; Joseph H. Collins, Judge.

Suit by Hazel Noonan, administratrix of the estate of Floyed Noonan, deceased, against George Volek. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before the Entire Bench. Selden S. Miner and Leon F. Miner, both of Owosso (Ellis F. Wilson, of Owosso, of counsel), for appellant.

Paul V. Gadola, of Flint (Pulver & Bush, of Owosso, of counsel), for appellee.

WIEST, J.

The morning of November 20, 1925, Floyd Noonan was driving a milk delivery wagon drawn by one horse, along a street in the city of Owosso. Defendant, driving an automobile, approached the milk wagon from the rear and, plaintiff claims, collided with and overturned the wagon upon Mr. Noonan, broke his back and neck, and paralyzed him from the neck down. Mr. Noonan regained consciousness and survived five days. This suit was brought by the administrator of Mr. Noonan's estate to recover damages under the Survival Act (Comp. Laws 1915, § 12383 et seq.). Upon the trial, plaintiff had verdict and judgment. Review is by writ of error.

At the trial it was the claim of plaintiff that Mr. Noonan was driving on the righthand side of the street, near the curb, and defendant, without warning signal, approached from the rear, ran his car against the wagon with such force as to tip it over and upon Mr. Noonan, who was riding upon the right-hand step of the wagon, and, after the wagon tipped over and was upon Mr. Noonan, the horse, frightened by the collision, dragged the wagon several feet, then broke loose and ran across the street. At the close of plaintiff's proofs, in support of the mentioned claim, defendant moved for a directed verdict, on the ground that negligence on defendant's part had not been shown. The motion was denied, and defendant put to his proofs. The ruling was right at that stage of the trial. It then appeared that defendant's car overtook and struck the wagon in the rear end. This fact, under highway regulations, rendered defendant prima facie guilty of negligence. Act No. 236, Public Acts 1919 (1922 Supp. C. L. § 4865 (5), so provides.

The presumption, however, exists only in the absence of evidence, and does not serve at all when the issue of negligence is tried out upon evidence. This was made clear in the charge of the court. Defendant claimed at the trial that Mr. Noonan was driving near the center of the street, and, as he approached the wagon, he sounded his horn in signal of his purpose to pass upon the left, slowed down, and turned his automobile to go by, and would have passed safely, had not the horse turned suddenly toward the center of the street and brought the wagon in his path, that the car unavoidably struck the left hind wheel of the wagon, but only with slight force, and the car was instantly brought to a stop and the wagon was overturned some feet away by the sharp cramping of the wagon by the horse. As sometimes happens, the claim of each party was supported by several eyewitnesses.

The verdict of the jury was in accord with plaintiff's claim. Defendant moved for a new trial, alleging the verdict to be contrary to the weight of the evidence, and also set up newly discovered evidence. The motion was denied. The verdict was supported by the testimony of several witnesses. If the verdict had been for defendant, it would have had support also. We cannot hold the verdict against the clear weight of the evidence.

At the trial two witnesses testified that, just before the accident, they saw Mr. Noonan whipping the horse, and that the animal was kicking and plunging. In the motion for a new trial was a showing that the horse had run away and entered a dooryard some minutes before the accident, and, when Mr. Noonan recovered the horse, he punished it. The court found want of diligence in discovering the evidence, and that it was only cumulative. The new evidence, if given, would show the occasion for the treatment of the horse, above mentioned, and bring the horse and its driver to the place of accident in moods lending considerable weight to defendant's version of how the accident happened.

If the...