Poundstone v. Creamery

• Decision Date: 03 June 1940
• Docket Number: No. 45,Jan. Term, 1940.,45
• Citation: 293 Mich. 455,292 N.W. 367
• Parties: POUNDSTONE v. NILES CREAMERY.
• Court: Michigan Supreme Court

293 Mich. 455

292 N.W. 367

POUNDSTONE

v.NILES CREAMERY.

No. 45, Jan. Term, 1940.

Supreme Court of Michigan.

June 3, 1940.

Action by W. H. Poundstone, administrator of the estate of James Benford, deceased, against the Niles Creamery, to recover for the death of James Benford, who was struck by a truck. To review refusal of trial court to grant defendant's motion for judgment of no cause of action, the Supreme Court granted leave to appeal in nature of mandamus.

Writ of mandamus issued.

McALLISTER, J., BUSHNELL, C. J., and POTTER, J., dissenting.

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

Argued before the Entire Bench.

White & White, of Niles, for defendant and appellant.

Charles W. Gore, of Benton Harbor, for plaintiff and appellee.

BUTZEL, Justice.

We granted leave to appeal in the nature of mandamus to review the refusal of the trial court to grant defendant's motion for judgment of no cause of action. A motion for directed verdict was timely made at the close of plaintiff's proofs, and the case was submitted to the jury under the Empson Act (3 Comp.Laws 1929, §§ 14531-14534). The jury were unable to agree.

The motion for judgment upon disagreement of the jury is authorized by § 14535, 3 Comp.Laws 1929 (Stat.Ann. § 27.1471), which provides: ‘14535. Judgment upon disagreement of jury; request, exception to action of court. Section 1. Hereafter in all civil actions at law, in courts of record, other than probate courts, wherein issues of fact are submitted to a jury, and the jury disagrees and is discharged by the court, it shall be proper for either party on motion and notice to the opposite party to request the entry of judgment upon the evidence and proofs taken, within sixty (60) days after the discharge of such jury, and if the court shall decide as a matter of law that a verdict should have been directed in the case for either party, the court shall enter its order upon the record ordering judgment in accordance with the decision of the court, and the party against whom such judgment is entered shall have an exception to such action of the court as a matter of course.’ Defendant claims an absolute right to a judgment in its favor as a matter of law; plaintiff claims that it was within the discretion of the trial judge to order the case to stand for trial before another jury and that mandamus should not issue unless there is a flagrant abuse of discretion, citing Jaeger v. Mitchell, 277 Mich. 464, 269 N.W. 235. We think the case before us is not within the rule which inhibits us from setting aside an order granting a new trial, so long as the bounds of discretion have not been transgressed, even though we might be inclined to deny a retrial were we sitting in the position of the trial judge. Section 14535, 3 Comp.Laws 1929 (§ 27.1471 Stat.Ann.) provides that, ‘if the court shall decide as a matter of law that a verdict should have been directed in the case for either party, the court shall enter its order upon the record ordering judgment in accordance with the decision of the court * * *.’ We are reviewing the decision of the trial court on the question of law, a ruling not subject to his discretion.

The facts are not in dispute, the argument centering about the conclusions to be drawn therefrom. James Benford, plaintiff's intestate, was fatally injured by being hit by a truck owned by defendant. At the time of the injury he was about 59 years of age, and was suffering from myocarditis, an inflammatory condition of the heart muscles, which ailment caused him sudden, terrific pain. As he advanced in years, the condition grew worse. Defendant owned and operated a one and one-half ton truck which was carrying empty milk cans at the time of the accident. It had an open type stake body with a covered cab, the cab being 8 or 10 inches narrower than the open part of the truck body. There were ordinary glass windows in the doors of the cab. Early in the morning of July 10, 1935, defendant's employee drove the truck along Fifth Street in the city of Niles, accompanied by a boy about 16 years of age. The atmosphere was clear and the pavement was dry. The truck was proceeding straight along the street at the rate of 12 or 15 miles per hour, and at no time was it closer than 5 to feet from the right curb. It did not change its course or swerve towards the right curb. Both the driver and his companion testified that they were looking straight ahead and could see somewhat to the right side of the car, and that they saw no one standing at the curb or on the street. They could see ahead probably a block and a half. When the truck reached a point about opposite a ramp in the side of the road, two hands ‘came up against the window and smashed the glass' which fell into the lap of the boy sitting beside the driver. The impact did not break the entire window but ‘took a chunk clear out * * * just a round hole.’ The truck came to an immediate stop, but was then driven from the center of the road about 75 feet ahead and out of the street. The driver immediately went back to look after decedent. He was lying on the street ‘about three feet from the curb and his feet out toward the pavement.’ No part of the truck ran over him, nor was he struck by the right front of the truck. The front part of the truck up to the cab window seemed to have passed him before the impact. As a result, plaintiff's decedent suffered a fracture of the left clavicle and of two ribs on the left side, with the consequence that the left lung collapsed, pulling to the left his heart which was already in bad condition, and death followed in three days. There was no testimony whatever to tell us just what decedent did prior to the impact.

It is claimed that there was no evidence of negligence on the part of the defendant or its driver. The trial court refused to enter judgment for defendant on the ground that if the driver had looked ahead, he would have seen plaintiff, and that he was negligent not to avoid striking deceased, citing Wilkins v. Bradford, 247 Mich. 157, 225 N.W. 609.

In reviewing the case, we consider the testimony in the light most favorable to plaintiff, the party against whom it is claimed the judgment should not have been entered. Pomeroy v. Dykema, 256 Mich. 100, 239 N.W. 342;Warwick v. Blackney, 272 Mich. 231, 261 N.W. 310. Proof of an accident and resulting injury is not alone sufficient to establish defendant's responsibility, but the fact that an accident happened may be considered along with proof of the other circumstances to determine whether negligence existed. Manley v. Potts, 286 Mich. 671, 282 N.W. 862, and cases there cited. See, also, Elsey v. J. L. Hudson Co., 189 Mich. 135, 155 N.W. 377, L.R.A.1916B, 1284. Negligence may be proved by circumstantial evidence. Wilkins v. Bradford, 247 Mich. 157, 225 N.W. 609. There must be substantial evidence which forms a reasonable basis for the inference of negligence. Frye v. City of Detroit, 256 Mich. 466, 239 N.W. 886. There must be more than a mere possibility that unreasonable conduct of the defendant caused the injury. We cannot permit the jury to guess, although legitimate inferences may be drawn from established facts. Heppenstall Steel Co. v. Railway Co., 242 Mich. 464, 219 N.W. 717. In the present case, plaintiff failed to present facts from which a jury could properly infer that misconduct of the driver was responsible for the death of plaintiff's decedent.

The trial court relied largely on Wilkins v. Bradford, supra, where we held that the circumstances proved were sufficient to warrant a jury finding of negligence. On a cloudy night a youngster of eight years was sent to deliver a pail of milk to a neighbor. He was found lying on the highway dead. Defendant's car was examined about a mile up the road where it was involved in another accident. The proofs showed that there was milk on the radiator and windshield, hair on the car of the color and texture of that of the boy, and there was a dent in the radiator about the size of the boy's head, in which dent was found hair similar to that of the boy. Mr. Justice Fead, in connection...