Smith v. Wassink

• Decision Date: 04 April 1933
• Docket Number: No. 1.,1.
• Citation: 262 Mich. 639,247 N.W. 766
• Parties: SMITH v. WASSINK et al.
• Court: Michigan Supreme Court

262 Mich. 639

247 N.W. 766

SMITH

v.WASSINK et al.

No. 1.

Supreme Court of Michigan.

April 4, 1933.

Appeal from Circuit Court, Ingham County; Charles B. Collingwood, Judge.

Action by Ray Smith against Lynes Wassink and another, copartners, doing business as the Lansing Motor Sales. Judgment for plaintiff, and defendants appeal.

Verdict and judgment vacated and case remanded, with direction to enter judgment non obstante veredicto for defendants.

Argued before the Entire Bench.Kelley, Sessions, Warner & Eger, of Lansing, and Harry F. Hittle, of Lansing, for appellants.

Pierce & Planck, of Lansing, for appellee.

NORTH, Justice.

This suit arises out of a collision between two automobiles at the intersection of Pine and Genesee streets in the city of Lansing. On trial before a jury plaintiff had verdict and judgment, and defendants have appealed. The sole question presented is appellants' claim that the driver of the automobile in which plaintiff was riding was guilty of contributory negligence which was imputable to plaintiff, and therefore, defendants' motion for a directed verdict, as well as their motion for judgment non obstante, should have been granted.At the time of the accident the car in which plaintiff was riding was proceeding northerly on Pine street, and defendants' car easterly on Genesee street. The one on Pine street was going at a speed of approximately twenty miles an hour. There is considerable testimony that the other car was going at substantially the same rate, though inference may be justified that it was going at a higher rate of speed. Neither slackened its pace any appreciable time before the collision which occurred just as the car in which plaintiff was riding was crossing the center line of Genesee street. This car did not change its course prior to the impact; but immediately before the collision defendants' car veered somewhat northerly in an evident attempt to avoid the accident. The collision occurred during daylight hours, but neither driver seems to have seen the other automobile until practically at the point of impact. As they approached the intersection each car was traveling on the right hand side of the street, and each street was thirty feet from curb to curb. When the automobile in which plaintiff was riding reached a point about thirty-seven feet south of the southerly curb of Genesee street, the driver had an unobstructed view westerly on Genesee street beyond the point from which defendants' car was approaching. As the car on Pine street was crossing the walk on the south side of Genesee street, defendants' car was approximately eight feet west of the walk on the west side of Pine street. There were side curtains on the car in which plaintiff was riding and apparently its driver did not see defendants' car approaching from his left until another man riding in his car said ‘Watch out,’ and at that time it was too late to avoid the accident.

Appellee stresses the fact that the collision occurred north of the center line of Genesee street and east of the center line of Pine street, i. e., in the northeast portion of the intersection. This is disputed by defendants' testimony, but in deciding the question presented by this appeal the testimony must be accepted which is most favorable to appellee. Defendants' automobile struck the one in which plaintiff was riding on the left front wheel and fender. The only fair inference that can be drawn from the testimony is that at the instant of collision the forward portion of the car in which plaintiff was riding was just northerly of the center line of Genesee street; that the slight swerving of defendants' car to the left was in an effort to avoid the accident; and that had their car proceeded in a straight course the only difference would have been that it would have struck...