Savas v. Beals

• Court: Michigan Supreme Court
• Writing for the Court: STARR
• Citation: Savas v. Beals, 304 Mich. 84, 7 N.W.2d 231 (Mich. 1942)
• Decision Date: 23 December 1942
• Docket Number: No. 52.,52.
• Parties: SAVAS v. BEALS et al. (two cases).

304 Mich. 84

7 N.W.2d 231

SAVAS

v.BEALS et al. (two cases).

No. 52.

Supreme Court of Michigan.

Dec. 23, 1942.

Actions by Charles v. Savas against George Beals and another, and by Lillian Savas against the same defendant, to recover for injuries sustained in an automobile accident. From a judgment entered for defendant after jury disagreement plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Ingham County; Charles H. Hayden, judge.

Before the Entire Bench.

John D. Lynch, of Detroit, for plaintiffs and appellants.

Shields, Ballard, Jennings & Taber, of Lansing, for defendants and appellees.

STARR, Justice.

Plaintiff Charles V. Savas and his wife, plaintiff Lillian Savas, were injured in an automobile accident occurring about three o'clock in the afternoon on November 1, 1940, on State highway M-113 at a point about three miles east of the town of Kingsley. To recover their respective claims for damages resulting from such accident, plaintiff Charles V. Savas and his wife began separate suits against defendants George Beals, his wife Lillian Patterson Beals, the Michigan State highway department, and G. Donald Kennedy as State highway commissioner. Prior to trial, by stipulation and order, the suits were dismissed as to the State highway department and the highway commissioner.

The two cases were consolidated for jury trial in circuit court. At the conclusion of plaintiffs' proofs and again at the conclusion of all proofs, defendants moved for directed verdicts of no cause of action on the ground that the testimony did not establish negligence on the part of the defendants and that plaintiff driver Charles V. Savas was guilty of contributory negligence. Both such motions were denied. The cases were submitted to the jury which was unable to agree upon verdicts and was discharged.

After such jury disagreement defendants, in pursuance of 3 Comp.Laws 1929, § 14535 (Stat.Ann. § 27.1471), filed motions for the entry of judgments of no cause for action upon the evidence and proofs taken. The trial court granted such motions and entered judgments for defendants. Plaintiffs appeal from such judgments, and the parties have stipulated that both cases shall be considered and determined as one on this appeal. For sake of brevity in this opinion we shall refer only to the case of plaintiff Charles V. Savas.

Plaintiff Savas, a traveling salesman about 43 years old, accompanied by his wife, plaintiff Lillian Savas, was driving his 1940 Ford automobile in a westerly direction on State highway M-113. The highway was level, about 18 feet in width, and of hard-surfaced construction. The berms or shoulders on each side of the paved portion were nine feet wide, hard, and fairly level. The day was cloudy, and it was raining or misting. Plaintiff testified that ‘visibility was not so good but it wasn't so bad.’ Plaintiff, who was familiar with the highway, was driving on the right (north) side at a speed, according to his testimony, of 35 to 40 miles an hour and had reached a point about three miles east of the town of Kingsley where the accident occurred. He testified, in part:

‘I came to a mound or small hill and when I arrived at the top of the hill, I saw another car (defendant's) coming at a tremendous speed, about 20 or 25 feet away from may car and I turned. My instinct told me-I automatically turned to the right, and started off the highway and gave the right of way to this man. * * *

‘Q. What would you say was the rate of speed at which the car was traveling as it came toward you? A. 55 or 60 miles an hour, around there, a very good speed.

‘Q. He too was traveling on the north (wrong) side of the highway? Q. On the wrong side of the highway. * * *

‘Q. Did your car and the car being operated by defendant, George Beals, actually collide? * * * A. No, I got out of the way so we would have no collision.’

Plaintiff testified, in substance, that the cars did not collide; that to avoid a collision, he turned his car to the right (north) off the highway and hit a tree located 10 or 12 feet, ‘maybe 14, * * * possibly’ 18 or 19 feet from the north edge of the pavement. Plaintiff's car was damaged, and he and his wife were injured. The only eyewitnesses of the accident were plaintiff, his wife, and defendant George Beals who was driving alone.

Despite plaintiff's testimony to the contrary, the evidence establishes the fact that the south half of the paved portion of highway M-113 was being repaired and, at the scene of the accident and for some distance in each direction, was covered with an oily substance, also referred to as ‘prime,’ preparatory to resurfacing; that the accident occurred in a repair zone about three miles long, protected at its east and west ends by barriers, warning signs, and flagmen; that on the day of the accident west-bound traffic in such repair zone was instructed, on meeting east-bound traffic, to detour off the pavement and onto the adjoining berm or shoulder; that east-bound traffic in such repair zone was instructed to drive on the north (wrong) side of the pavement. However, both plaintiff and his wife testified, in substance, that they saw no barricade, warning signs, flagmen, or watchmen, and saw no evidence of the road's being under repair. Plaintiff said: ‘I didn't see nothing. * * * I didn't make it my business to look at it.’

Plaintiff's testimony as to his clear and unobstructed vision to the west as he approached the scene of the accident is particularly important. He testified further, in part:

‘Q. As you went up that mound, how far down ahead of you could you see to the west? A. You can see if you make it your business, up to the top of the hill. * * *

‘Q. What is the distance then? A. About 400 or 500 feet. * * *

‘Q. Are you sure it is not more than that? A. Maybe more, I don't know. * * *

‘Q. You told us you could stop your car within 10 or 12 feet, didn't you? A. Yes, sir, if I want to stop it I could.

‘Q. Believing your life was in danger, you swung off this highway and you went a distance of something over 100 feet before you ran into the tree. Will you explain just why you didn't stop within that 100 feet if you could stop within 10 or 12 feet? A. I couldn't explain that. As to what happened after that, I couldn't tell you. Why I didn't, I can't tell you. * * * Technically, I don't know. * * *

‘Q. Did you apply your brake at any time during that 100 or so feet you were driving? A. I don't remember. * * *

‘Q. Do you remember the back end of your car skidding over onto this oily substance on the south side of the pavement and then shooting across the pavement and then up to the tree and the bank there by the side of these trees? A. I don't remember. * * *

‘Q. Would you say your car didn't swing over into this oily substance, the tail end of your car? * * * A. I don't know, maybe it did. * * *

‘Q. Didn't you see he (defendant) was slowed up and was practically at a standstill when you went in front of him and off on the gravel? A. He slowed down.’

Defendants present an entirely different version of the accident. During the forenoon of the day of the accident defendant George Beals drove an automobile owned by his wife, defendant Lillian Patterson Beals, in a westerly direction over M-113 on his way from Cadillac to Traverse City. He testified there was a barrier and warning sign located, and a flagman stationed, at the east end of the repair zone; that the warning sign indicated the road was under repair and that the flagman instructed him ‘to go on my own (north) side of the road until I met a car (east bound) and then I was to take to the shoulder of the road and allow the car to pass through on the highway.’ Defendant Beals testified further as to his return from Traverse City east over M-113 in the afternoon and regarding the accident, in part, as follows:

‘As I came to the westerly end of this repair zone, I found a barrier there and a watchman. The watchman stopped me. * * * He gave me my instructions and I started on. * * * There was a barrier there and a sign indicating the road was under repair. I believe the watchman at the other end on one previous trip through there had told me that there was oil or preparation on the south lane of the highway at that time. I could see that there was as I drove along.

‘Q. You proceeded in the north (left) lane going in an easterly direction and came up the hill. Tell the jury what, if anything, you saw in front of you on down the hill? A. Well, the crest of this hill, I got on top of it and started down, a slight incline there, up over the crest of a small hill or knoll, you might say, and I saw the car (plaintiff's) coming at me at a really terrific rate of speed. As soon as I saw the car coming, I knew it was a logical place for an accident, something of that sort to happen, the rate of speed he was going, so I immediately applied the brakes very slightly and started to slow down. This car continued to come right at me so I came to a complete stop. This car was coming at me and evidently the driver, he must have applied his brakes on this wet pavement, the rear of his car slid over into this oily base and he slid sideways for some distance there, and then the car must have got traction again, and it shot across in front of me. He left the shoulder of the road and continued on there and started to go down between two trees. As I looked back through my side window, I thought he was going to make it between the two trees. He got practically between the two of them and his car straightened out and collided with the tree.

‘Q. Had you stopped at that time? A. I was stopped at that time. * * *

‘Q. Can you give an estimate of the distance ahead of you, east of you, he passed in front of you, going to the north side of that pavement? A. I believe it was a distance of about 25 or 30 feet, it seemed to me. Of course, he was going so fast it was hard to tell the distance, the rate of speed he was going. * * *

‘Q. Could you estimate...