Oliver v. Ashworth

• Decision Date: 06 June 1927
• Docket Number: No. 35.,35.
• Citation: 239 Mich. 53,214 N.W. 85
• Parties: OLIVER v. ASHWORTH.
• Court: Michigan Supreme Court

239 Mich. 53

214 N.W. 85

OLIVER

v.ASHWORTH.

No. 35.

Supreme Court of Michigan.

June 6, 1927.

Error to Circuit Court, Wexford County; Fred S. Lamb, Judge.

Action by Manily Oliver against Franklin H. Ashworth. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.

Penny & Worcester, of Cadillac, for appellant.

Fred C. Wetmore, of Cadillac (Samuel A. Anderson, of St. Paul, Minn., of counsel), for appellee.

SNOW, J.

Plaintiff was struck and severely injured by a large touring car, driven by defendant, at the corner of State and Maple streets in the city of Big Rapids. State street runs north and south. Maple street runs into it from the east, but does not cross it.

Defendant approached the corner from the south, at a speed variously estimated to be from 25 to 30 miles per hour. At the same time a man named Snider, driving a Ford sedan, was approaching on State street from the north. He attempted to turn east into Maple street, and, as he turned, his automobile and that of the defendant collided, and defendant's car ran into and over the plaintiff, who was on the sidewalk on Maple street near the point where it runs into State street.

Plaintiff had judgment in an action for damages, and defendant brings error. As we proceed, such additional facts will be stated as may be necessary in considering the assignments of error.

Under the rule, the trial judge conducted the voir dire examination of the jurors. During the examination, the following occurred:

‘Mr. Wetmore: I would like to have the jurors interrogated as to whether they or any of them have insurance policies in the American Automobile Insurance Company of St. Louis.

‘The Court: I put that question to you, if any of you have, gentlemen? (No response.)’

Defendant claims this to be prejudicial and to constitute reversible error, as the jury thereby learned he carried insurance against liability on any judgment that might be rendered against him.

We are satisfied that the question was suggested by plaintiff's counsel for no improper purpose. It was not pursued in the examination of witnesses nor in the argument to the jury, and it is said the information was desired for the purpose of exercising peremptory challenges. That no further mention of insurance was made throughout the trial lends force to this claim. In the recent case of Sutzer v. Allen, 236 Mich. 1, 209 N. W. 918, Justice Bird, speaking for the court, uses this language:

‘It has now become common knowledge that people owning automobiles have them insured, and, because that fact in a particular case reaches the ears of the jury during the trial, it is no longer reversible error unless an improper use is made of it by counsel for the evident purpose of inflaming the passions of the jury and thereby increasing the size of the verdict.’

This case disposes of the complaint here. The logic of the rule is undeniable, and the trend of recent judicial expressions has been in this direction. Church v. Stoldt, 215 Mich. 469, 184 N. W. 469;Ward v. De Young, 210 Mich. 67, 177 N. W. 213;Reynolds v. Knowles, 223 Mich. 71, 193 N. W. 900.

Defendant next contends that the court improperly charged the jury on the question of plaintiff's contributory negligence. Plaintiff was in neither of the automobiles in collision, and had nothing to do with it. He was walking on the north sidewalk of Maple street towards State. An eyewitness to the accident, produced by defendant, testified that defendant and Snider were driving in opposite directions on State street; that Snider was going south, and upon reaching Maple street attempted to turn into it; that defendant also ‘commenced to turn onto Maple street by the south curb of Maple’; that their cars came together at a point 5 or 6 feet east of the east line of State street, which would be about 16 or 17 feet east of the center line of State. Plaintiff admits he saw defendant's car approaching while about 200 feet south of the corner. He says he continued on his way, looked to the north, heard the crash, and, as he turned his head towards it, defendant's car was about 3 feet from him; that it broke two posts south of the edge of the sidewalk upon which he was walking, came over the curb before he had a chance to get away, and ran over him. Defendant testified the collision occurred ‘about 7 or 8 feet north of the center of Maple street and probably from 10 to 15 feet east of the east line of State street.’ Maple street is 50 feet wide. The record is not clear as to how far east of the State street curb plaintiff was when struck, but we gather he was somewhat back of the point of collision. He was in any event at no great distance from the two automobiles. Defendant testified he first saw plaintiff when his car approached the walk; that he was standing about 5 or 6 feet back from the curb ‘with his feet out and his hands up and his mouth open.’

Counsel for defendant insist that, if his testimony is true, the plaintiff, after seeing the approaching car, had plenty of time to protect himself from the approaching danger, and that the question of contributory negligence was an element in the case for consideration by the jury. We do not think so. But a few seconds of time could possibly have elapsed after plaintiff had any reason whatever to realize he was in danger before he was struck. Seeing an automobile approaching 200 feet away was certainly no indication it would run into another car and be forced from the road. It is not to be marveled that plaintiff stood agape when he saw the cars come together. It was but natural. There was no time for the mind to function or the will to exercise. If he had any...