Schillinger v. Wyman

• Decision Date: 05 September 1951
• Docket Number: No. 25,25
• Parties: SCHILLINGER v. WYMAN.
• Court: Michigan Supreme Court

Page 119

49 N.W.2d 119

331 Mich. 160

SCHILLINGER v. WYMAN.

No. 25.

Supreme Court of Michigan.

Sept. 5, 1951.

Rolland E. Barr, St. Joseph, for plaintiff.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids, (Edward D. Wells, Grand Rapids, of counsel), for defendant and appellee.

Before the Entire Bench.

DETHMERS, Justice.

On a dry, clear, midsummer night plaintiff's decedent lift a country tavern on the west side of a four lane, 40 foot paved highway, intending to walk to some tourist cabins located directly across the road. There were no other buildings in the vicinity. Lighted signs in front of the tavern and cabins illuminated the road somewhat. Decedent's eyesight was good. Some distance to the south his highway curved gradually, but there was a clear, unobstructed view of the pavement in that direction for several hundred feet. Defendant was driving her automobile north in the most easterly lane. Her lights were on. No other automobiles or traffic were in sight in either direction. A collision between decedent and defendant's left front fender occurred in the most easterly lane, blood and skid marks indicating that at the instant of impact decedent was on the most westerly part of that lane. He was killed instantly. Shortly after the accident defendant told an officer that she had not seen decedent until she was practically upon him. A witness for plaintiff testified that from what he learned he knew that defendant saw the accident. There were no other eyewitnesses.

Defendant was present at trial but was not called as a witness. Plaintiff offered no proofs concerning decedent's actions from the time he left the tavern until the accident. There is nothing in the record from which it might be inferred that he was free from contributory negligence. Plaintiff has contended, however, both on trial and on appeal, that it should be held that there were no eyewitnesses and that, therefore, decedent must be presumed to have been free from contributory negligence. As authority he cites Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N.W. 270; Gilbert v. Ann Arbor R. Co., 161 Mich. 73, 125 N.W. 745; Gates v. Beebe, 170 Mich. 107, 135 N.W. 934; Parsons v. E. I. Du Pont de Nemours Powder Co., 198 Mich. 409, 164 N.W. 413, L.R.A. 1918A, 406; Clark v. Lawrence Baking Co., 240 Mich. 352, 215 N.W. 337; Busso v. City of Grand Rapids, 255 Mich. 474, 238 N.W. 273; Petersen v. Lundin, 236 Mich. 590, 211 N.W. 86; Hinchey v. J. P. Burroughs & Son Co., 240 Mich. 273, 215 N.W. 346; Wilkins v. Bradford, 247 Mich. 157, 225 N.W. 609; Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536; Fairchild v. Detroit, etc., R. Co., 250 Mich. 252, 230 N.W. 167; Delfosse v. Bresnahan, 305 Mich. 621, 9 N.W.2d 866; Fenn v. Mills, 243 Mich. 634, 220 N.W. 770; and Gembolis v. Rydeski, 258 Mich. 521, 243 N.W. 44. Defendant, on the other hand, urged on trial, as now, that under the authority of such cases as Black v. Ambs, 307 Mich. 644, 12 N.W.2d 381; Foote v. Huelster, 272 Mich. 194, 261 N.W. 296; Buchel v. Williams, 273 Mich. 132, 262 N.W. 759; Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407; Kalbfleisch v. Perkins, 282 Mich. 27, 275 N.W. 754; Peck v. Hampel, 293 Mich. 252, 291 N.W. 648, and Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863, defendant must be held to have been an eyewitness, removing the presumption and leaving the question of decedent's freedom from contributory negligence a subject for proof by plaintiff. There having been no such proof, the trial court granted defendant's motion for a directed verdict of no cause for action. Plaintiff appeals.

In seeking to reconcile the holdings in the above cases cited by plaintiff with those cited by defendant, it might seem that, with certain exceptions, a possible generalization might be drawn to the effect that the availability of the presumption to a plaintiff's case depends upon the failure of the surviving defendant to have seen enough of decedent's actions prior to and at the time of the accident to constitute defendant an actual eyewitness. The application of that test will hardly serve, however, to reconcile the adoption of the presumption in Peterson v. Lundin, supra, Fenn v. Mills, supra, and Hinchey v. J. P. Burroughs & Son Co., supra, with its rejection in Collar v. Maycroft, supra, and Faustman v. Hewitt, supra, the defendant in each of those cases, as in the instant case, having seen the decedent but an instant before the accident when it was too late for either to aboid it. That the amount of opportunity for and length of time during which defendant observed decedent prior to the accident, if at all, are factors to which but scant, if any, significance attaches, in the judgment of this court, would appear from our failure to so much as touch upon or mention them in our opinions in Foote v. Huelster, supra, and Peck v. Hampel, supra, this court having contended itself in the latter case with the observation that defendant was presumed to have seen decedent before the accident and, hence, to have been an eyewitness, thus removing the presumption of decedent's due care. A further possible explanation of the apparently irreconcilable conflict in the holdings of this court on the subject may be that, with the single exception of Delfosse v. Bresnahan, 305 Mich. 621, 9 N.W.2d 866, in which defendant had admitted before trial that he had not seen decedent at all prior to the accident, the above cited cases relied upon by plaintiff antedate Foote v. Huelster, 272 Mich. 194, 261 N.W. 296, and that the latter represents a turning point in the views of this court, supporting, as do our subsequent decisions, the contention of defendant that the presumption is not indulged if the surviving defendant saw decedent at all before the accident....