Palazzolo v. Sackett

• Decision Date: 01 June 1931
• Docket Number: Motion No. 489.
• Citation: 254 Mich. 289,236 N.W. 786
• Parties: PALAZZOLO v. SACKETT et al.
• Court: Michigan Supreme Court

254 Mich. 289

236 N.W. 786

PALAZZOLO

v.SACKETT et al.

Motion No. 489.

Supreme Court of Michigan.

June 1, 1931.

Appeal from Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Action by Joseph Palazzolo, by his next friend, Jacob Palazzolo, against Ray C. Sackett and another. Verdict for plaintiff, and, from an order granting a new trial, plaintiff appeals, and defendants cross-appeal.

Order set aside, and cause remanded for entry of judgment on the verdict.

Argued before the Entire Bench. Linsey, Shivel & Phelps and Wicks, Fuller & Starr, all of Grand Rapids, for appellant.

Dale Souter, of Grand Rapids (Fred N. Searl, of Grand Rapids, of counsel), for appellees.

McDONALD, J.

This is an action to recover damages for injuries sustained by the plaintiff because of the negligence of the defendants in operating an automobile on Ionia avenue in the city of Grand Rapids. The case has been twice tried. On the first trial a judgment for the plaintiff was reversed by this court in 245 Mich. 97, 222 N. W. 83. The facts are therein sufficiently stated. In reversing that judgment, this court held that the verdict was not against the great weight of the evidence. On the second trial the verdict was again in favor of the plaintiff. On motion of the defendants the trial court set the verdict aside and granted a new trial on the sole ground that it was against the great weight of the evidence. It is the plaintiff's contention that the former decision of this court on that question made the law of the case and that the trial court was bound to follow it on the second trial when the record was substantially the same.

‘It is so well known as to be well-nigh a maxim of the law that, when an appellate court speaks, such holding is the law of the case in all subsequent proceedings of the case in both the trial and appellate courts.’ St. Louis & S. F. R. Co. v. Barker et al. (D. C.) 210 F. 902; 4 C. J. §§ 3075-3265; 2 R. C. L. § 191, p. 227; Hall v. Murdock, 119 Mich. 389, 78 N. W. 329;Ruttle v. Mining Co., 161 Mich. 150, 125 N. W. 787;Wood v. Vroman, 226 Mich. 625, 198 N. W. 228;Terrill v. Traction Co., 214 Mich. 478, 183 N. W. 46;State National Bank v. Wernicke, 202 Mich. 8, 167 N. W. 980.

Applying this rule to the case at bar, it must be held that our decision on the first review, that the verdict was not against the weight of the evidence, made the law of the case and was binding on the trial court in the second trial unless the record is materially different.

‘When the evidence presented on the second appeal is materially different from that previously passed upon, the decision on the prior appeal is not conclusive. There must, however, be a material change in the evidence; additional evidence which is merely cumulative will not take the case out of the rule and constitute a material change, where evidence of the same class and character on the former appeal was held insufficient to prove the facts in controversy.’ 2 R. C. L., p. 228.

The rule of law is firmly settled. The question is, Should it be applied in this case? A comparison of the records shows that with two exceptions the same witnesses testified on both trials, and that their testimony is substantially alike. Two additional witnesses, Edward C. Palmer and George Ford, were sworn for the defendants on the second trial. Neither of them saw the accident which occurred on Ionia avenue about 100 feet south of its intersection with Graham street. The defendants came from the east on Graham street and turned south on Ionia. A witness for the plaintiff testified that they were then driving at a speed of thirty or thirty-five miles an hour. The only purpose of Mr. Palmer's testimony was to show that they could not make the turn at that rate of speed. But, as they did not make it without hitting the curb, according to plaintiff's witness, it is apparent that Mr. Palmer's testimony made no material change in the record on the question of speed.

Mr. Ford testified that, if defendants' car was traveling thirty miles an hour at the time of the accident as claimed by the plaintiff, it could not be stopped in a distance of ten or twelve feet on a gravel street. It was defendants' claim that it was stopped in that distance after hitting the plaintiff. This was disputed. But the rate of speed at which defendants were driving was not necessary to a showing of negligence. Regardless of the speed, the defendants were negligent if the accident happened as claimed by the plaintiff. Speed was not a contributing cause. The plaintiff was 3 years of age at the time of the accident. He was playing on the grass between the sidewalk and curb. It is his claim that defendants were driving on the wrong side of the street, and, when they got within three or four feet of him, he suddenly jumped from the curb in the path of their car. It was a sudden and unanticipated act arising from childish impulse. In these circumstances the defendants would have been without fault had they not been driving on the wrong side of the street. With equal truth it may be said that, if the accident happened as the defendants claim, speed was not a contributing cause. They say they were driving on the right side of the street when the plaintiff suddenly darted out from between two parked automobiles directly in front of their car. So, whatever view may be taken of the testimony, speed had little or no effect in...