Perkins v. Great Cent. Transp. Corp.

• Decision Date: 04 April 1933
• Docket Number: No. 124.,124.
• Citation: 262 Mich. 616,247 N.W. 759
• Parties: PERKINS v. GREAT CENTRAL TRANSPORT CORPORATION et al.
• Court: Michigan Supreme Court

262 Mich. 616

247 N.W. 759

PERKINS

v.GREAT CENTRAL TRANSPORT CORPORATION et al.

No. 124.

Supreme Court of Michigan.

April 4, 1933.

Appeal from Circuit Court, Wayne County; Allan Campbell, Judge.

Action by Audrey Perkins, administratrix of the estate of Banner Perkins, deceased, against the Great Central Transport Corporation and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded with directions.

Argued before the Entire Bench.Kerr, Lacey & Scroggie, of Detroit, for appellants.

Walter M. Nelson, of Detroit, for appellee.

SHARPE, Justice.

The plaintiff and her husband, Banner Perkins, were traveling in a northerly direction from Bowling Green towards the city of Toledo, in the state of Ohio, in the evening of February 5, 1930, in a Nash car, owned by her but driven by her husband. At about 9:30 o'clock their car collided with the rear of a truck standing on the highway, owned by the defendant corporation and driven by the defendant Roberts, and Mr. Perkins sustained injuries resulting in his death the following day. She brings this action as administratrix of his estate to recover the damages incident thereto. On trial before the court and a jury she had verdict and judgment for $9,950, from which the defendants have taken this appeal.

Among the errors complained of is the refusal of the court to direct a verdict for the defendants and its denial of defendants' motion for judgment non obstante veredicto, both based on the claim that no negligence on the part of the defendants was shown and that the deceased was guilty of contributory negligence.

The testimony of plaintiff may be summarized as follows:

She and her husband were driving north on Dixie highway about 5 miles from Bowling Green. The road was paved 16 or 17 feet in width. They had their headlights on. It was a very misty night and extremely cold. ‘There wasn't exactly snow, there had been snow previously. But you would go along all right for a while, and then you would sort of come on ice, and then you could drive a little ways again and it was sort of patchy.’ There was a shoulder on the right-hand side about 2 feet wide. They were traveling about 25 miles per hour. When about 30 feet from the truck, plaintiff saw ‘apparently a black object, but I could not discern what it was, or I could not have said at the time what it was.’ It was in their path, all ‘four wheels on the pavement.’ Plaintiff's husband ‘put on the brakes on the car, and sort of jerked, and then it started to slide, so he took hold of the wheel, so far as he could, so he turned it to the right, and he reached down with his left hand and pulled on the emergency brake. * * * The car slid right into the truck. * * * The side I was sitting on turned full around, and I was thrown from the car. * * * He took to the ditch and then turned to the right.’ The car struck the corner of the truck ‘toward the center of the road.’ It turned partway around. She got up and went to the car. Her husband was ‘sitting in the car.’ There was nobody in the cab of the truck. There was no light on the rear of the truck. ‘I screamed for help,’ and some people across the road came with a lantern. Motorists came along, and her husband was taken out and to a farmhouse. He was conscious and able to walk. He was afterwards taken to a hospital and treated by doctors, but died the next morning.

On cross-examination she said that they were both familiar with the highway; that they could see about 30 feet ahead of their car; that they had not used their windshield wiper. ‘You could not see their lights plainly’-of the on-coming traffic. ‘They gave a funny dazzling sort of a light. * * * My husband has stopped his car within ten feet.’ ‘Q. Did you see any lights at all? A. No, I did not see any lights.’ A car could have passed the truck as it stood there.

The plaintiff was the only eyewitness to the collision. It thus appears by the undisputed testimony that the deceased was driving the car along a slippery road at the rate of about 25 miles per hour in the nighttime, and that the truck standing therein could not be seen by him, owing to the darkness and the atmospheric conditions, until he had reached a point in the highway about 30 feet from it. At the rate of speed he was traveling, the car would cover this distance in less than one second of time, and it appears that there was plenty of room for him to have passed the truck had he seen it in time to do so. These facts being undisputed, had the collision occurred in this state it would have been the duty of the trial court to have granted defendants' motion for a directed verdict on the ground of the contributory negligence of the deceased. Humphrey v. County of Wayne, 257 Mich. 398, 241 N. W. 212, and cases therein cited.

The collision occurred in the state of Ohio. ‘Where an action is brought in one jurisdiction for a tort committed in another, the general rule is that all matters relating to the right of action are governed by the lex loci delicti, and all matters relating purely to the remedy by the lex fori.’ 5 R. C. L. p. 1036.

Counsel for the plaintiff contends, and the trial court after lengthy argument concluded, that, under the law of that state as construed by its appellate court, the question of contributory negligence must be submitted to and passed upon by the jury. It was asserted by plaintiff's counsel, and conceded by defendants' counsel, that under the law in that state the syllabi state the holdings of the court rather than the opinions.

The case most strongly relied on is Tresise v. Ashdown, 118 Ohio St. 307, 160 N. E. 898, 58 A. L. R. 1476, the first syllabus of which reads as follows: ‘In an action to recover damages for injuries claimed to have been sustained by the driver of a motor vehicle resulting from a collision with another motor...