Smith v. Ormiston
| Decision Date | 04 June 1928 |
| Docket Number | No. 104.,104. |
| Citation | 242 Mich. 600,219 N.W. 618 |
| Parties | SMITH v. ORMISTON. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Clyde I. Webster, Judge.
Action by Flossie B. Smith, administratrix of the estate of Cleveland B. Smith, deceased, against William H. Ormiston. Judgment for defendant notwithstanding the verdict, and plaintiff brings error. Affirmed.
Argued before the Entire Bench.Anderson, Wilcox, Lacy & Lawson, of Detroit (Earl L. Shimer, of Detroit, of counsel), for appellant.
Frederick J. Ward and Peter L. Jorgenson, both of Detroit, for appellee.
Cleveland B. Smith, decedent, and one Croski, were sales agents in the employ of real estate brokers. On July 31, 1923, they were taking some ‘prospects' out to a Warrendale subdivision, going out on Warren avenue. Smith was driving the car, a seven-passenger Studebaker; there were from 9 to 11 in the car; the time was about or shortly before 7 in the afternoon. At Town Line road, also known as Division road, the Studebaker came in collision with defendant's car resulting in Mr. Smith's death. The place of the accident was in the open country. There was a gas station and a small garage at the corner; they set back 15 or 20 feet from the highway, and there seem to have been some small cottages near them, although the proof does not very definitely locate them. The testimony established an unobstructed view approaching the corner until the filling station was reached. Mr. Croski was in the front seat with Mr. Smith. He was called as a witness by plaintiff and gave the most intelligent and favorable testimony in her behalf of any witness called. He saw defendant's car coming when it was some 900 to 1,000 feet from the intersection of the two streets. It was traveling 45 to 50 miles an hour, in violation of the statute then in force-‘come very fast.’ The Studebaker was then back about 400 feet from the intersection and was traveling about 20 miles an hour or a little better, which rate was lessened as they approached the corner. He also says that when they were a block away from the corner he saw the defendant's car about three blocks away. He did not speak to Smith about the oncoming car, and so far as he knew or observed Smith looked straight ahead and did not look to the right or left until they had passed the intersection of the street.
At the close of plaintiff's proof and again at the close of all the proof, defendant's counsel moved for a directed verdict, basing such motion on the claim that no negligence of defendant had been shown and that plaintiff was guilty of contributory negligence. These motions were reserved under the Empson Act, and later a judgment was entered for defendant notwithstanding a verdict for plaintiff, the trial judge concluding that decedent was guilty of contributory negligence as matter of law.
The testimony of Mr. Croski took the question of defendant's negligence to the...
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MacDonald v. Skornia, 41.
...he, as a plaintiff, is guilty of contributory negligence as a matter of law. A few of our many decisions so holding are: Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618;Kerr v. Hayes, 250 Mich. 19, 229 N.W. 430;Kok v. Lattin, 261 Mich. 362, 246 N.W. 149;Ehrke v. Danek, 288 Mich. 498, 285 N.W......
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Morrison v. Grass, s. 58
...or at the time of collision. Ude v. Fuller, 187 Mich. 483, 153 N.W. 769;Geeck v. Luckenbill, 215 Mich. 288, 183 N.W. 729;Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618.' ‘Under the facts as shown in this cause, plaintiffs' driver with the use of ordinary care could have prevented the accide......
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Weller v. Mancha
...at the time of collision. Ude v. Fuller, 187 Mich. 483, 153 N.W. 769; Geeck v. Luckenbill, 215 Mich. 288, 183 N.W. 729; Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618. 'This case is similar to Boerema v. Cook, 256 Mich. 266, 239 N.W. 314; DeCoopman v. Hammond, 279 Mich. 619, 273 N.W. 290; W......
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Francis v. Rumsey
...to cross without giving further heed to the oncoming vehicle until the instant before or at the time of collision, Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618;Koehler v. Thom, 285 Mich. 593, 281 N.W. 336; and that it is incumbent upon both drivers in approaching an intersection to use ca......