Pomeroy v. Dykema

• Decision Date: 08 December 1931
• Docket Number: No. 125.,125.
• Citation: 256 Mich. 100,239 N.W. 342
• Parties: POMEROY v. DYKEMA.
• Court: Michigan Supreme Court

256 Mich. 100

239 N.W. 342

POMEROY

v.DYKEMA.

No. 125.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Circuit Court, Muskegon County; John Vanderwerp, Judge.

Action by Alice Pomeroy, administratrix of the estate of June Pomeroy, deceased, against Cornelius O. Dykema. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before the Entire Bench.Galpin, Smedley & Dunn, of Muskegon, for appellant.

Amos F. Paley, of Grand Rapids, for appellee.

NORTH, J.

At the close of plaintiff's proofs in this automobile accident case the court directed a verdict in defendant's favor. Plaintiff has appealed. The sole question presented is whether direction of the verdict was error. Under such circumstances the record must be construed in the light most favorable to appellant.

About 5:30 in the afternoon of April 19, 1929, defendant was driving his Studebaker coupe in a southerly direction on U. S. 31 in the city of North Muskegon in the block next south of Ruddiman avenue. The paved highway was twenty feet in width exclusive of the gutters at the side; the total width being substantially thirty-two feet. A truck delivering merchandise to a store on the westerly side was backed against the curb and extended in a northeasterly direction practically to the center line of the street. As defendant approached the truck he was compelled to drive on the easterly side of the center line of the street. After passing the truck he turned his car back towards the westerly side of the street, and just at this point he struck plaintiff's decedent, June Pomeroy, who obviously was attempting to cross from the westerly curb to his place of business on the opposite side of the street. He received fatal injuries. Defendant was driving about twenty-five miles per hour and going down something of a grade. He was not sworn as a witness, but it appears from the testimony of plaintiff's witnesses that defendant said he did not know that his automobile had struck anybody until he was told so shortly thereafter by a priest who seems to have been riding with him. Defendant thereupon stopped his automobile and returned to the point of accident. So far as the record discloses, no one saw the impact between defendant's car and plaintiff's decedent; but there is testimony from plaintiff's witnesses that two days after the accident defendant showed them the side of the car ‘where he, Pomeroy, hit the handle of the door and cracked it.’ The door handle was cracked. There was a mark across the side of the car almost the full length of the door in line with the handle. One of these witnesses at the time was on the easterly side of the street directly opposite the point of accident. He was engaged in servicing a car at a filling station. Only an instant before he had seen plaintiff's decedent at the curb line on the opposite side of the street. This witness testified: ‘I didn't actually see the car and June as they came together, the car was between me and him. When I saw the car going down the hill it was on the right-hand side of U. S. 31.’ At that time plaintiff's decedent was lying on the cement roadway near the westerly curb.

Defendant's motion for a directed verdict was based both upon the ground that there was no testimony tending to establish actionable negligence on the part of defendant and that plaintiff failed to offer...