Soltar v. Anderson

• Decision Date: 08 September 1954
• Docket Number: J,No. 56,56
• Parties: Norman D. SOLTAR, Plaintiff and Appellant, v. Harold ANDERSON, Defendant and Appellee. une Term.
• Court: Michigan Supreme Court

Page 777

65 N.W.2d 777

340 Mich. 242

Norman D. SOLTAR, Plaintiff and Appellant, v. Harold ANDERSON, Defendant and Appellee.

No. 56, June Term.

Supreme Court of Michigan.

Sept. 8, 1954.

Harold Goodman, Detroit, for appellant, Norman D. Soltar.

Stanley Berriman, Howell, for appellee.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff appeals from judgment for defendant on a jury verdict of no cause for action returned in his suit for damages resulting from an automobile collision. Assignments of error go solely to the court's instructions to the jury and refusal to charge as requested.

The court instructed the jury that, 'Negligence must be proven as an established fact and cannot be inferred.' This was error. Alpern v. Churchill, 53 Mich 607, 19 N.W. 549; Mirabile v. Simon J. Murphy Co., 169 Mich. 522, 135 N.W. 299; Dyer v. People's Ice Co., 188 Mich. 203, 154 N.W. 135; Brown v. Arnold, 303 Mich. 616, 6 N.W.2d 914; Winchester v. Chabut, 321 Mich. 114, 32 N.W.2d 358; Lepley v. Bryant, 336 Mich. 224, 57 N.W.2d 507. Defendant urges the correctness of the instruction on the authority of King v. Nicholson Transit Co., 329 Mich. 586, 46 N.W.2d 389. We did not hold there that negligence may not be inferred from facts proved, but only that a verdict must not rest upon conjecture or guess. The distinction was recognized in Hewitt v. Flint & P. M. R. Co., 67 Mich. 61, 34 N.W. 659, 665, where we said:

'Negligence, when relied upon, must be proven. It may be inferred from facts proved, but never from mere conjecture.'

The rule was also well stated in Porter Machinery Co. v. Coleman, 329 Mich. 8, 44 N.W.2d 845, 848, as follows:

'* * * it has been repeatedly held that negligence may be established by circumstantial evidence, and that if the proofs are such as to take a case out of the realm of conjucture into the field of legitimate inference from established facts a prima facie case is made. Alpern v. Churchill, 53 Mich. 607, 19 N.W. 549; Barnowski v. Helson, 89 Mich. 523, 50 N.W. 989, 15 L.R.A 33; Bacon v. Snashall, 238 Mich. 457, 213 N.W. 705; Eaton v. Consumers Power Co., 256 Mich. 549, 240 N.W. 24.'

It is defendant's further position that if there was error in the instruction it should not result in reversal under the provision of C.L. 1948, § 650.28, Stat.Ann. § 27.2618, that, 'No judgment or verdict shall be set aside or reversed, or a new trial be granted * * * on the ground of misdirection of the jury * * * unless * * * it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice', defendant contending that an examination of the entire cause discloses the verdict to be in accord with justice. The statute is ineffective to chanbe the rule always in effect in Michigan, both before and after the enactment, that the question of reversal is controlled by determination of whether the error was prejudicial. For cases so holding despite the existence of the statute at the time, see Kemp v. Aldrich, 286 Mich. 715, 286 N.W. 81, and Germiquet v. Hubbard, 327 Mich. 225, 41 N.W.2d 531.

Was the error prejudicial, requiring reversal? The essence of plaintiff's charge of negligence on the part of defendant's driver was that he failed to make and maintain a reasonable and proper lookout for plaintiff's approaching automobile, to observe it, and, on the basis of such observation, to form and act upon judgments as an ordinary, reasonable, prudent and careful person would have done under the same...