Schneider v. Pomerville

• Decision Date: 28 February 1957
• Docket Number: No. 22,22
• Citation: 81 N.W.2d 405,348 Mich. 49
• Parties: Thomas SCHNEIDER, Plaintiff and Appellant, v. Lawrence W. POMERVILLE and Catherine Galloway, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 405

81 N.W.2d 405

348 Mich. 49

Thomas SCHNEIDER, Plaintiff and Appellant, v. Lawrence W. POMERVILLE and Catherine Galloway, Defendants

and Appellees.

No. 22.

Supreme Court of Michigan.

Feb. 28, 1957.

This automotive negligence case was tried to the court. The trial judge found plaintiff guilty of contributory negligence and entered judgment for defendants. His opinion, upon which judgment was entered, reads as follows:

'This is an action for damages growing out of an automobile collision. The accident occurred November 14, 1948, about 1:30 in the morning. The plaintiff was a resident of Lansing and had come to Jackson for the evening and had gone to a show, Dyer's Bar, and then to the Regent Cafe. He says after he got out of the Regent Cafe the bar was closed so he got his car and started for home out US-127 towards Lansing.

'The defendant, Pomerville, and his party apparently thought Lansing had more entertainment, so after getting together, they went to Lansing, drove around a while, went into a restaurant, had something to eat, and then started back towards Jackson. On the way back they stopped at the Red Barn and had some beer. They then started for Jackson and south of Leslie, after they had rounded the curve heading for Jackson, the plaintiff's car and the defendant's car collided. The defendant said he was probably over into the other lane about a foot when he was coming around the curve, but before the accident happened he was in his own lane and that the plaintiff was in the defendant's lane of traffic and the cars came together, throwing the plaintiff's car slightly around so that it was facing in a northwesterly direction and the defendant's car was just at a very slight angle.

'All the parties in the defendant's car say they were on their own side of the road when the collision occurred so that when the parties on the right side of the car got out they stepped on the gravel. This pavement at that spot south of the curve is a good wide road and there is apparently plenty of room, and had the plaintiff stayed on his side of the road he could have gone by without any difficulty because after the collision occurred an oil tanker went by the plaintiff's car standing in the position it was without hardly getting off the pavement.

'So, here we have a case where both drivers had been drinking somewhat but none of them driving at a great rate of speed according to their own testimony, the plaintiff saying he was going about 30 or 35 miles an hour, and the defendant stating that he was going around 30 miles or less an hour.

'In the opinion of the Court, the plaintiff has failed to establish by the preponderance of the evidence that he was free from contributory negligence and that it was the defendant's sole negligence that caused the accident. Plaintiff tries to claim sudden emergency which caused him to pull over to the left. In the opinion of the Court, if there was any sudden emergency it was caused by the plaintiff's own driving. He had plenty of space on his own side of the pavement, and had he stayed there as a reasonably prudent person would have done there would have been no accident. All of the defendant's witnesses testified that they were on their own half of the highway and that the plaintiff was over on their side of the highway and were unable to avoid hitting the plaintiff's car although the defendant tried to avoid it.

'After careful consideration of the facts, the Court is of the opinion that the plaintiff has failed to show that he was free from contributory negligence, and has failed to show that the cause of the accident was the sole negligence of the defendant. Therefore, a judgment of no cause for action may enter.'

Aside from that which is portrayed in the quoted opinion, the record shows proof of physical evidence and a stipulation that Dr. Kraft, of nearby Leslie, gave first aid to plaintiff and to an occupant of defendant's car (witness Baird). The stipulation recites that the doctor, if called as a witness, would testify that he 'detected no evidence of any kind that Mr. Schneider had been drinking' and that 'Mr. Baird was then intoxicated'. The mentioned physical evidence will be considered during test of the only decisive assignment, viz., 'that the judgment is against the preponderance of the evidence', Court Rule No. 64.

Humpsh & Giltner, Lansing, Kleinstiver & Anderson, Jackson, of counsel, for plaintiff-appellant.

McKone, Badgley, Domke & Kline, Jackson, for defendant-appellee.

Before the Entire Bench.

BLACK, Justice (after stating the facts).

First: The case before us is a close one since it appears with clearly preponderating force that defendant Pomerville was the first of the two approaching drivers to partially encroach upon left side of the pavement. The real question--one of fact manifestly--is thus addressed to causation, refined to this: Did the defendant driver return to his own side of the pavement in ample time, considering relative distances and speeds, to eliminate the sudden emergency doctrine plaintiff invokes?

The assignment of error before us requires thought upon the same questions of practice as were considered at length in opinions written respectively by Justices McAllister and North in Jones v. Eastern Michigan Motorbuses, 287 Mich. 619, 643, 283 N.W. 710. Do we test such an assignment to determine whether findings of fact are contrary to clear weight of the evidence or, as the expression appears occasionally, contrary to overwhelming weight of the evidence, In re Cutter's Estate, 194 Mich. 34, 38, 39, 160 N.W. 605? Or, referring to cases such as Leonard v. Hey, 269 Mich. 491, 257 N.W. 733 and Brackins v. Olympia, Inc., 316 Mich. 275, 25 N.W.2d 197, 168 A.L.R. 890, do we seek on impetus of such assignment to determine whether the evidence clearly preponderates in favor of the appellant? These questions, I think, are due for fair answer since it is clear that uncertainty exists in regard to relevant function of this Court in jury and non-jury cases.

The following points appear as having been fairly settled in Jones' prevailing opinion:

1. In reviewing controverted issues of fact under Rule 64 we act exclusively as an appellate court and do not consider the case de novo as in equity cases.

2. A broader scope of review is provided by Rule 64 than obtains on review of a judgment entered upon verdict of a jury. ¹ This latter conclusion prompts approach, as follows, to consideration of the case at bar:

Our duty under said Rule 64, the question being duly posed and saved for review, is to sift the evidence for determination whether it clearly preponderates in favor of the appellant's cause. Necessarily, the judicial sieve will be of finer mesh than the one correspondingly employed here on review of denial of motion for new trial in a jury case. This is as it should be. A jury's verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge's verdict-view of the same facts, learned though the judge may be in law. For reasons known well to students of American history, a finding of fact by 'the twelvers' is more apt to be sound than that of one man. ² If this be right, our task at bar is bound to be a more difficult one than if the judgment below had been entered on verdict of a jury. When in rare instance a jury's verdict is judged contrary to overwhelming weight of evidence, the conclusion must be so obvious that verdict-sustaining argument loses all force. On the other hand, when evidence is appraised to determine clear preponderance thereof, forceful argument each way subsists to the last and usually survives final judgment.

Second: The helpful photographic exhibits brought here show that this substantially head-on collision occurred when defendants' southbound car had just completed traversing the presently mentioned curve and plaintiff's northbound car was about to enter the curve. The latter is right-inside for a southbound motorist and left-outside for a northbound driver. For a trunk line highway it is unusually sharp. The photographs show that an original T-intersection of graveled highways--the crossbar being east-west--existed at the point and that the curve proceeds across the southwest quadrant, thus completing a right angle turn of the trunk line. They show also that a northbound motorist, about to enter the curve, finds himself with little space within which to maneuver on his right side, the shoulder being narrow and there being a nearby row of trees--too large for combat--in the right-hand highway ditch. So, and as previously indicated, plaintiff's claimed right to application of the 'sudden emergency' doctrine depends to great extent on the distance, short of the final point of impact, defendant Pomerville returned if he did to his own side of the pavement.

If, as claimed by him, plaintiff remained on his own side of the pavement until a collision with defendants' oncoming centerstraddling car was so imminent as to impel a last-moment turn to left or right, then he assuredly was entitled to application by the trial court of the mentioned emergency doctrine. On the other hand, and if as claimed by defendants their car regained right side of the pavement well before the collision occurred, then contributory negligence in ...