Peters v. Wurzburg

• Decision Date: 04 June 1934
• Docket Number: No. 100.,100.
• Parties: PETERS v. WURZBURG et al.
• Court: Michigan Supreme Court

267 Mich. 45

255 N.W. 316

PETERS

v.WURZBURG et al.

No. 100.

Supreme Court of Michigan.

June 4, 1934.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, Judge.

Action by Joseph Peters, by his next friend, Rose Lukauskas, against Marguerite C. Wurzburg and Friedrich Buervenich. From a judgment for plaintiff, defendants appeal.

Affirmed.

Argued before the Entire Bench.

Travis, Merrick, Johnson & McCobb, of Grand Rapids, for appellants.

McAllister & McAllister, of Grand Rapids, for appellee.

BUSHNELL, Justice.

Plaintiff had a verdict from a jury in the sum of $9,739.95, arising out of an accident occurring on the outskirts of the city of Grand Rapids. Plaintiff, riding his motorcycle about noon on July 31, 1931, was going east on M-21, accompanied by a young woman who was killed in the ensuing collision. Defendant Wurzburg's automobile, unoccupied except for its driver, defendant Buervenich, was moving in the opposite direction. About 200 feet west of the brow of a hill, the road takes a curve towards the south to a point about 800 feet east of the crest. The day was clear and the pavement dry; the highway for some distance each way from the scene of the accident may be described as rolling. Both vehicles were going at a rapid rate and the collision occurred at a point close to the brow of the hill. Each party testified that the other was not visible to him until they were within 40 feet of each other.

Plaintiff claims that defendant's car was straddling the black center line, indicating that the automobile was partly on the wrong side of the road. Defendant's case is largely based on the assertion that his car was at least a foot and a half to the north of the center line of the road and that, just before the collision, plaintiff was driving his motorcycle on the wrong side of the black line. The testimony as to the facts is no less conflicting than the claims of the parties. As a result of the impact, plaintiff's companion was thrown against or near a mailbox on the south side of the road, and plaintiff was found under his motorcycle in the middle of the south lane. He suffered a compound fracture of the left leg and a fracture of the smaller bone of the foot, resulting in a permanent impairment of much of the use of the limb.

Defendant's car came to a stop in a ditch on the south side of the road after zigzagging for some distance which, according to defendant's claim, was caused by the bursting of a tire, cut by a projection on the motorcycle. Testimony was submitted showing tire marks beginning 18 inches north of the center line at a point approximately 45 to 75 feet west of the mailbox. Plaintiff contends that the defendant was cutting the curve. The front half of the car and motorcycle were not damaged, from which defendant argues that plaintiff must have jerked his car to the right, projecting the back end still further over the center line of the road, thereby either sideswiping the motorcycle or hooking it with some part of the automobile.

The record and briefs are replete with conflicting testimony and claims arising out of the physical facts. Like the usual collision case, the difference between accident and safety was reduced to fractions of space and time, and it is of no great benefit to the public or the profession to encumber opinions with a discussion of highly controverted questions of fact and energetically contested arguments.

Disputed testimony as to the position of moving vehicles at the time of impact and the opportunity afforded drivers to see each other should generally be left to the determination of the jury, but defendants contend that when the physical facts clearly dispute the testimony, they must control, citing Brady v. Pere Marquette Railway Co., 248 Mich. 406, 227 N. W. 737, and Kok v. Lattin, 261 Mich. 362, 246 N. W. 149. Here, however, the physical facts are far from clear and deductions may be made therefrom in support of either theory.

Likewise, to hold with the defendant on the issue of contributory negligence would require a substitution of our determination in this case for that of the jury. We are urged by defendant to assume from the photographs introduced in evidence that plaintiff should have seen defendant coming over the hill and avoided the accident. We are unwilling to substitute our conclusions from photographs for the jury's conclusions after a view of the scene, accompanied only by a deputy sheriff. If we accept photographs shown in either party's brief at their face value, we would be adopting views the accuracy of which would depend upon conditions of light, angle of vision, and many other conflicting factors, etc., and from the one particular spot selected by the party whose photograph we use, rather then the impressions of a jury which was in a position to view the premises from every conceivable point. We cannot under the record presented hold plaintiff guilty of contributory negligence.

Appellants include in their brief some 24 pages of quotations from the record in support of their contention that plaintiff's counsel consistently attempted to prejudice the defendants in the minds of the jury. We do not approve of quibbling and...