Patt v. Dilley

• Decision Date: 10 December 1935
• Docket Number: No. 82.,82.
• Citation: Patt v. Dilley, 273 Mich. 601, 263 N.W. 749 (Mich. 1935)
• Parties: PATT v. DILLEY.
• Court: Michigan Supreme Court

273 Mich. 601

263 N.W. 749

PATT

v.DILLEY.

No. 82.

Supreme Court of Michigan.

Dec. 10, 1935.

Action by Louis J. Patt against Otis V. Dilley. Judgment for plaintiff, and defendant appeals.

Reversed, and new trial granted.Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

Rodgers & Dunn, of Grand Rapids, for appellant.

Mason, Alexander, McCaslin & Cholette, of Grand Rapids, for appellee.

WIEST, Justice.

While plaintiff was riding in the automobile of a friend in the city of Grand Rapids the evening of New Year's Day, 1935, another automobile sideswiped the car and caused a blow-out of the left front tire. While the car was parked at the proper side of the street and plaintiff was at the rear thereof to obtain the spare tire, defendant's car came up and, it is claimed, pinned his left leg between the bumpers of the two cars, almost severing the limb and occasioning subsequent amputation. While taking plaintiff to the hospital, defendant's car had a head-on collision with another car, and plaintiff was thrown to the pavement and suffered a fractured skull. The action at bar was brought to recover damages for the injuries inflicted to the leg. Plaintiff, upon trial by jury, had verdict and judgment, and defendant prosecutes review upon alleged erroneous instructions to the jury.

Counsel for plaintiff, without conceding errors in the instructions, contend that, under defendant's own testimony, he was guilty of negligence as a matter of law, so requested the court to charge the jury, and therefore the judgment should be affirmed regardless of errors, if any, in the instructions, citing Comp.Laws 1929, § 15518, and our holding in Cothran v. Cleenewerck & Son, 235 Mich. 351, 209 N.W. 132.

Defendant's testimony was not a confession of negligence in fact nor in point of law, but raised the issue of reasonable care and presented facts involving the emergency doctrine. Defendant saw the parked car when about 150 to 175 feet away, and at that point he also observed the lights of a car approaching in front, took his foot off the accelerator, let his car free-wheel toward the curb, the approaching car passed when he was about 75 feet from the parked car, when it passied, he swung to get back to the center of the street, and, when no longer blinded by the light of the approaching car, he saw a dark object three or four feet ahead of his car, which proved to be plaintiff, and he applied the brakes and the application turned the course of the car from clearing the object, and at that time the speed of his car was about eight or ten miles per hour. The position of plaintiff upon the road, whether immediately back of the car or a few feet from it or at the rear corner thereof, was in dispute.

We think the question of defendant's negligence was one of fact for the jury. This brings us to the instructions complained of.

The court instructed the jury as follows: ‘It is negligence for a person to drive an automobile at night at such a speed that it cannot be stopped in a distance that objects can be seen ahead. It does not excuse a driver who alleges that he was blinded by the lights of an approaching car. If his vision is thus obscured, it is his duty to slacken his speed and have his car under such control that he can stop it immediately, if necessary....