Oppenheim v. Rattner, Docket No. 1037

• Decision Date: 25 April 1967
• Docket Number: No. 2,Docket No. 1037,2
• Citation: Oppenheim v. Rattner, 149 N.W.2d 881, 6 Mich.App. 554 (Mich. App. 1967)
• Parties: Herbert OPPENHEIM, individually, and as Next Friend of Philip Oppenheim, a minor, Plaintiffs-Appellants, v. Harvey J. RATTNER and Richard Rattner, a Minor, Individually and jointly, Defendants-Appellees
• Court: Court of Appeal of Michigan

Page 881

149 N.W.2d 881

6 Mich.App. 554

Herbert OPPENHEIM, individually, and as Next Friend of Philip Oppenheim, a minor, Plaintiffs-Appellants, v. Harvey J. RATTNER and Richard Rattner, a Minor, Individually and jointly, Defendants-Appellees.

Docket No. 1037.

Court of Appeals of Michigan, Division No. 2.

April 25, 1967.

Leave to Appeal Denied July 13, 1967.

Saul M. Leach, Maile, Leach & Silver, for appellants.

Kenneth B. McConnell, Hartman, Beier, Howlett & McConnell, Pontiac, for appellees.

Before T. G. KAVANAGH, P.J., and GILLIS and McGREGOR, JJ.

T. G. KAVANAGH, Judge.

Richard Rattner, heading west on Maple Road, was in the intersection of Franklin Road waiting to make a left-hand turn on to Franklin. According to his testimony he obseved who cars approaching the intersection from the west, the first about 20 feet away and the second about 100 yards away. He concluded that he could make the turn in safety after the first car passed him, and he attempted to execute this maneuver after the first car passed him. His car collided with the second car as it entered the intersection.

Philip Oppenheim, a passenger in the second car which was driven by Gilbert Sears, was injured in the collision and this suit is for the damages occasioned thereby.

The jury returned a verdict of no cause for action and on appeal nine assertions of error are made. One treats of the trial court's refusal to direct a verdict of liability against the defendants, three treat of questions concerning the admissibility of evidence, and two are concerned with the closing argument of defendant's counsel, two fault the court's instructions to the jury, and one maintains the verdict to be against the weight of the evidence. Of these we find only one to merit extended discussion.

We have carefully reviewed the court's instructions and the omitted requests to charge and we are satisfied that the charge as given fairly and adequately presented the theories and the applicable law. We find no error here. See Hammock v. Sims (1946), 313 Mich. 248, 21 N.W.2d 118.

We view likewise the objections to defense counsel's closing argument and the court's ruling thereon. Counsel's comment in light of his opening statements seems consistent and unobjectionable. The answer placed the matter of driver Sears' responsibility squarely in issue and the argument was not inappropriate in our view.

The contention that the verdict was against the great weight of the evidence was considered by the trial court in passing upon plaintiff's motion for a new trial. We are not persuaded the court abused his discretion in denying the motion for we observe ample evidence in the record to support the jury's verdict. Gibbons v. Delta Contracting Co. (1942), 301 Mich. 638, 4 N.W.2d 39; Alley v. klotz (1948), 320 Mich. 521, 31 N.W.2d 816; Dempsey v. Miles (1955), 342 Mich. 185, 69 N.W.2d 135.

Regarding the direction of a verdict, we are committed to the proposition that negligence will be determined as a matter of law only when no reasonable men could draw a different conclusion from the circumstances established. See Kroll v. Katz (1965), 374 Mich. 364, 132 N.W.2d 27; Alley v. klotz, supra.

Here a careful examination of the record does not convince us that defendant's conduct was such as to require all reasonable men to conclude he was negligent. We find no error here.

The errors asserted regarding the admission of evidence are concerned with a photograph and the testimony of an eye witness.

A photograph was produced and witness Sears affirmed that it fairly represented the Maple-Franklin intersection. Plaintiff's objection to its introduction on the grounds that the photographer was not present for cross-examination was overruled by the court.

We think the ruling was proper. 'As with demonstrative evidence generally, the prime condition on admissibility is that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by such a witness on personal knowledge as a correct representation of these facts. The witness who thus lays the foundation...