Pearce v. Rodell, 136.

• Court: Supreme Court of Michigan
• Writing for the Court: POTTER
• Citation: 276 N.W. 883,283 Mich. 19
• Parties: PEARCE v. RODELL
• Docket Number: No. 136.,136.
• Decision Date: 29 December 1937

283 Mich. 19

276 N.W. 883

PEARCE

v.RODELL

No. 136.

Supreme Court of Michigan.

Dec. 29, 1937.

Action by Robert Pearce against Victor Rodell. From a judgment for plaintiff, defendant appeals.

Affirmed.Appeal from Circuit Court, Berrien County; Fremont Evans, judge.

Argued before the Entire Bench.

Gore, Harvey & Fisher, of Benton Harbor (Harry C. Howard, of Kalamazoo, of counsel), for appellant.

White & White, of Niles, for appellee.

POTTER, Justice.

Plaintiff, claiming to have been injured by being struck by defendant's automobile negligently operated by him, brought suit and had verdict by a jury for $6,296.15. A motion for a new trial was made and denied and judgment entered on the verdict, with costs. Defendant appeals, claiming error in the introduction of testimony, the introduction of photographs made after the accident, the introduction of expert testimony, charging the jury, overruling the motion of defendant for a new trial, and in not reducing the damages awarded.

On the evening of October 13, 1935, at about 7:30 p. m., plaintiff and his companion, one Cooper, were walking along the right-hand side of a road in Berrien county. Plaintiff claims he was not walking upon the pavement, but outside the pavement; while defendant claims plaintiff was walking on the pavement. Defendant and his companions came alone in defendant's automobile talking together, without much concern about the traffic, speed, or anything else. Defendant saw the headlights of an approaching automobile and claims he passed the approaching automobile and, just as he was meeting this automobile, his car struck plaintiff. Some of defendant's companions thought the automobile defendant met was pretty well by when plaintiff was struck. Defendant testified he had passed an intersection where he slowed down, he was blinded by the lights of the on-coming automobile, and ‘Just as I was right along broadside of him I noticed something in front of him, I put on the brakes, I didn't have time to honk the horn or speak; I knew I hit something and when I, after I hit him I went, not over 20 feet, and applied the brakes the moment I see I was going to hit something and stopped and went back and see I hit a man. * * * I had plenty of room on the pavement on my side of the road. My car was on my own side of the road as we were passing this other car. I was on the pavement. * * * I didn't see anybody in front of me before I hit him. I didn't know at the time of the impact what part of my car struck this object. I afterwards examined my car to find out in what manner or what way my car was damaged. I discovered the glass on the right headlight was broken, the lamp was bent back and the upper right corner of the radiator was pushed back about two inches. * * * I afterwards discovered that Mr. Pearce here was the man I hit. * * * I backed off of the pavement so we wouldn't have so far to carry him. * * * I know the right wheels were on the shoulder or berm. I backed up about 20 feet so I was opposite of him. Then Charles and Mr. Cooper and I loaded him in the car. * * * I swung to the right as I met that other car,-just to my own side of the road. If there was any swinging I still stayed on my side of the road. We didn't swing in far enough to go off the pavement.’

Charles Ferguson, who was riding with defendant, said: ‘There was a time before our car hit Pearce that I saw Pearce, approximatelly ten feet I think that I saw him. * * * If I had been looking ahead, might have seen them two or three hundred feet, but I wasn't looking. * * * The reason I didn't see them before was, as far as I am concerned, probably because I was talking and not particularly looking ahead, just happened to glance ahead and there they were. * * * According to my estimate it was practically a tie as far as setting the brakes and hitting the man is concerned. I wasn't conscious of the car slowing down any before he was hit. Whatever speed we were going it hit at about that speed. * * * Ten feet I think would absolutely cover the distance he was knocked.’

The testimony of the parties was in direct conflict as to whether plaintiff was on the paved portion of the highway when struck. Defendant insists plaintifff was on the pavement. Plaintiff and his companion testify they were not on the pavement, but were walking upon the berm. Dr. Hubbard, of Eau Claire, was present when plaintiff was operated on and testified: ‘I had some talk with Mr. Rodell about how this accident happened. He said they were coming down the Shanghai road and they didn't stop at the crossing, and the car was coming up, and they had to swerve out in order to miss that car, and that is when he caught these fellows. He said that was when he hit Robert.’

Roy Laberty, a fruit farmer, living near Eau Claire, testified: ‘I saw Mr. Rodell there that night, this young man. I talked to him just a little. He told me something about how the accident happened. He said he was coming in from the Shanghai road and he said another car was coming from the south, and in turning out to miss the other car he struck Robert. He claimed he didn't see him.’

There is other testimony bearing upon the place where the accident occurred. Testimony was received, over defendant's objection, that the next morning Laberty went to the scene of the accident at the request of plaintiff who said he had lost some things and wanted Laberty to see if he could find them. Laberty testified he saw automobile tracks where they left the pavement, went toward the ditch on the right-hand side, ran along the ditch parallel thereto and back on to the pavement, the tracks were deeper near the ditch, and, near the deepest part of the track, were foot tracks, near the bank, and that there were no other automobile tracks. Defendant attempted to claim the tracks were probably those where he backed up his automobile at the time plaintiff was loaded in after he was struck. But the track in question indicates it could not have been made in the manner defendant claims, and the only question for consideration is whether the court was in error in receiving this testimony.

Defendant relies upon Billingsley v. Gulick, 252 Mich. 235, 233 N.W. 225, 227. In that case, the accident happened between 11 and 12 o'clock at night, upon a much traveled road, and testimony was admitted as to finding certain articles of personal property the next morning. The court said it was error to receive the testimony of the finding and location of the articles without affirmative proof there had been no change of position after the accident. The court said:

‘The accident caused other automobile drivers to stop and a crowd to gather. There was testimony of blood on the pavement about 6 feet from the edge, and that defendants' car was upon the pavement when it struck the deceased, and also testimony that after the car struck the deceased it left the pavement for a short distance.

‘It is difficult, from this record, to say whether the deceased was struck while upon the gravel or while upon the pavement.’

Under the testimony here, it was proper to show the location of these tracks.

In People v. Ryczek, 224 Mich. 106, 194 N.W. 609, 612, exception was taken to offered testimony as to automobile tracks in the highway near the place of accident. The observations testified to were made 24 hours after the accident. It was said: ‘The testimony showed that the cross road was a dirt road; that the tracks made by the automobile were still plain; that no other automobile tracks had been over that part of the road, but that there were some wagon tracks. This testimony showed that the left wheel of the automobile was in the footpath about 20 inches from the ditch. It also appeared that the broken cart lay where it was wrecked. We think it fairly appears that there had been no such change in the locus in quo as to make the testimony inadmissible.’

There was no error in receiving the testimony in relation to the tracks along the side of the road.

Photographs taken some time after the accident, at the location thereof, were introduced in evidence and received over defendant's objection that the pictures were taken with the plaintiff himself there. Exhibits 1 to 4 were photographs taken at the scene of the accident some time after it occurred. As to Exhibit 1, the photographer testified, ‘That picture is a correct representation of that scene from that point. I finished these photographs myself.’ As to Exhibit 2, he testified, ‘That correctly represents that scene. I finished this photograph.’ As to Exhibit 3, he testified, ‘That picture correctly represents the scene within the scope of my camera at that time.’ And as to Exhibit 4, he testified,‘This photograph is a correct representation of the situation from that point.’ In addition to this testimony, the photographer testified to the location of his camera upon the taking of each of the photographs. The trial court said: ‘The photographs will be received for the purpose of showing the general relative location of things at this point,’ and cautioned the jury as to the use of the photographs. Counsel for plaintiff said: ‘We do not claim for these photographs that the location of these two men or as they are located in the photographs is any proof whatever that they were at that place at the time of the accident. Our claim for it is that the jury may take the testimony of the witness themselves as fixing the location, and I wish you would instruct the jury upon that point.’

Whereupon the trial court said: ‘I accept the statement of Judge White as correct instructions of the court on that point.’

‘It is a constant practice to receive as evidence pictures and drawings of objects which cannot be brought into court, after these have been proved to be accurate representations of the subject. In like manner photographs are often admitted, when the proper preliminary proof as to their exactness and accuracy is offered. They are of the same...