Routt v. Berridge

• Decision Date: 07 October 1940
• Docket Number: No. 67.,67.
• Citation: 293 N.W. 900,294 Mich. 666
• Parties: ROUTT v. BERRIDGE et al.
• Court: Michigan Supreme Court

294 Mich. 666

293 N.W. 900

ROUTT

v.BERRIDGE et al.

No. 67.

Supreme Court of Michigan.

Oct. 7, 1940.

Action by Leonard Routt against Olin Berridge and Clarence Kellogg for injuries sustained in automobile collision. From a judgment for the defendants, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Muskegon County; Joseph F. sanford, judge.

Argued before the Entire Bench.

Alexis J. Rogoski, of Muskegon, and R. Glen Dunn, of Lansing, for appellant.

Alexander, McGaslin & Cholette, of Grand Rapids, for appellees.

POTTER, Justice.

Plaintiff began suit against defendants to recover damages for personal injuries claimed to have been caused by a collision between plaintiff's automobile and a Chevrolet truck owned by the defendant Berridge and driven by the defendant Kellogg on April 10, 1937, at Howard City, Michigan. From a judgment for defendants, plaintiff appeals.

Plaintiff claims the defendant Kellogg drove the defendant Berridge's truck at a high, dangerous and excessive rate of speed north on highway U. S. 131 between three and four o'clock in the afternoon; that plaintiff was driving in the opposite direction on his own side of the highway but planned and desired to drive into an automobile gasoline filling station on the east side of the highway; that plaintiff gave a signal to turn and drove across the highway and wholly cleared the highway and was on the driveway of the filling station when the defendant Kellogg drove off the right-hand side of the highway and struck and demolished plaintiff's automobile and caused plaintiff severe and permanent injuries set forth in the declaration. It is claimed by plaintiff that Kellogg drove the truck (a) carelessly and heedlessly along the highway and into the driveway of the filling station and at a speed so as to endanger plaintiff; (b) that he failed to drive the truck at a careful and prudent rate of speed but drove it at an excessive rate of speed so as to be unable to stop it within the assured clear distance ahead; (c) that defendant Kellogg drove the truck at a speed of 50 miles an hour in violation of the speed law of the State of Michigan fixed at 15 miles an hour in the business district and 20 miles an hour in the residential district of the city; (d) that he drove the truck in violation of the speed limit of the ordinance of the city of Howard City fixing the rate of speed at 15 and 20 miles an hour; (e) that the brakes on defendants' truck were defective; (f) that the defendant Kellogg did not have the truck under control; (g) that Kellogg failed to keep the proper lookout for traffic on the highway; (h) that he carelessly and wrongfully disregarded the signal given by plaintiff of his intention to make a left-hand turn with his automobile; (i) that he wrongfully drove against plaintiff's automobile when it was in a position of safety; (j) that the defendant Kellogg had ample opportunity to avoid the collision by driving to the left of plaintiff's automobile but permitted it to collide with it in violation of said duty; (k) that defendant Kellogg saw plaintiff's automobile 125 feet away but that he wilfully, wantonly and recklessly drove the truck against it, and that the proximate result of his wilful, wanton and reckless conduct in the operation of the truck was the injury to plaintiff and to his automobile; (1) that subsequently and in the course of the trial plaintiff's declaration was amended so as to charge defendant Kellogg with carelessly and negligently failing to sound his horn.

The damages complained of were serious. Plaintiff's right ear was partially cut off, he suffered injury to his right elbow, there was a partial severance of the triceps muscle and a marked loss of blood, his right shoulder blade was dislocated and broken, his right leg was hurt and bruised, his left hand was maimed and bruised so as to destroy the knuckles, he was jammed between the front seat and the steering wheel causing internal injuries, and was otherwise seriously injured about his head; and he suffered great inconvenience and damage in being treated as well as great pain. Plaintiff suffered loss to the extent of $25 for transportation to his home, $110 for hospital bills at Hackley hospital, and was to great cost and expense in nurse's care, hospitalization and medicines. It is plaintiff's claim that in the future he will continually suffer such loss; that he is seriously and permanently disabled by reason of the injuries suffered from carrying on his usual and ordinary vocation; that his automobile was wholly demolished, his clothing damaged and destroyed; and that he was without any fault or negligence contributing to the injury.

Defendants deny the truck was being operated at a high, dangerous or excessive rate of speed and that plaintiff was free from contributory negligence, but allege that plaintiff's injuries were due solely to his contributory negligence; deny that plaintiff signaled his intention to turn prior to the accident; deny that defendant Kellogg was guilty of contributory negligence; and particularly deny that defendant Kellogg was guilty of wilful, wanton and reckless misconduct and that plaintiff is entitled to any judgment of any kind, and allege they are entitled to a judgment of no cause for action.

The proof shows that defendants were carrying two horses in the truck in question, that it was equipped with hydraulic brakes properly tested and in good order; that there was no rain, ice or sleet upon the pavement but that it was dry; that as the defendant Kellogg came over the hill south of Howard City he saw plaintiff's automobile approaching possibly 1,300 to 1,600 feet away. Plaintiff says he looked toward the top of the hill and saw no car or truck approaching anywhere between him and the top of the hill which was approximately 1,300 to 1,600 feet away. Defendant Kellogg, when within about 100 feet of plaintiff, saw plaintiff had started to swing across the pavement and when within 25 or 30 feet plaintiff swerved sharply to the left. When plaintiff was coming on and within approximately 100 feet of the truck plaintiff turned partially around in the seat and seemed to be looking at the back of the automobile. A woman was riding with plaintiff. The truck probably was within about 20 feet of the automobile in question when the woman screamed or hollered and put up her hands. Plaintiff testified that as he was approaching the defendant Kellogg:

‘I looked ahead and I didn't see anything between me and the top of the hill and I proceeded across. Just when I was crossing the center of the street across the black line, a picture lying on top of some pillows...