Suarez v. Katon

• Decision Date: 02 September 1941
• Docket Number: No. 35.,35.
• Citation: Suarez v. Katon, 299 Mich. 38, 299 N.W. 798 (Mich. 1941)
• Parties: SUAREZ v. KATON et al.
• Court: Michigan Supreme Court

299 Mich. 38

299 N.W. 798

SUAREZ

v.KATON et al.

No. 35.

Supreme Court of Michigan.

Sept. 2, 1941.

Action by Rafael Suarez against Fred C. Katon, Jr., by Fred C. Katon, Sr., his guardian ad litem, and Fred C. Katon, Sr., to recover for personal injuries resulting from a collision between a motorcycle owned and operated by the plaintiff and an automobile owned by Fred C. Katon, Sr., and with his consent driven by Fred C. Katon, Jr. Motion in arrest of judgment for the plaintiff and for a new trial was denied, and the defendants appeal.

Judgment for plaintiff affirmed.Appeal from Circuit Court, Washtenaw County; George W. Sample, judge.

Argued before the Entire Bench.

Frank B. DeVine and Claude S. Rogers, both of Ann Arbor, for appellants.

Edward F. Conlin, Jack J. Kraizman, and Burke & Burke, all of Ann Arbor, for appellee.

STARR, Justice.

This is an action to recover damages for personal injuries resulting from a collision between a motorcycle owned and driven by plaintiff and an automobile owned by defendantFred C. Katon, Sr., and with his consent driven by his 15-year-old son, defendantFred C. Katon, Jr.

The accident occurred about 10 o'clock in the evening of April 10, 1940, on East Michigan avenue, also known as highway U.S.-112, a six-lane paved street, 66 feet wide, running east and west in the city of Ypsilanti.The street was well lighted, but visibility was poor, as it was raining or misting.

Plaintiff, 21 years old, was driving his one-passenger, single-seated motorcycle west on the north side of the street, at a speed of 15 to 20 miles an hour.Plaintiff had as a passenger 16-year-old Herman Vitale, who was sitting on about the rear one-third of the single seat.Plaintiff was sitting on about the front two-thirds of the seat.It is admitted that carrying such passenger on a single-seated motorcycle, designed for one person, was in violation of ActNo. 318, § 34b, subd. (b), Pub.Acts 1939, Comp.Laws Supp.1940, § 4726-2, subd. (b);Stat.Ann. § 9.1594(2), subd. (b).

DefendantFred C. Katon, Jr., was driving a Ford two-door sedan east on the south side of the street.In order to go to a store, known as Miller's Dairy, located near the middle of the block on the north side of the street, defendant driver turned to his left and drove north across the street, at a slight angle, into the westbound traffic lanes, at a speed variously estimated at from 10 to 30 miles an hour.Defendant driver intended to drive into an open parking space on the west side of Miller's Dairy.The dual windshield wipers on defendants' car were in operation, and the window in the right-hand door was closed.

Both drivers were familiar with the street, and apparently there was no other traffic interfering with them or contributing to the cause of the accident.At a point near Miller's Dairy, and about three feet from the north side of the street, plaintiff's motorcycle and defendants' car collided, the motorcycle striking the right side of the car, causing damage of about $180 to the car and wrecking the front end of the motorcycle.Plaintiff was severely injured and, although he was present in court at the trial, he was not called as a witness, and medical testimony indicated he was unable to testify.Defendant driver and the passenger on the motorcycle were not seriously injured.

At the conclusion of the trial, without jury, the court found defendants guilty of negligence and plaintiff free from contributory negligence, and assessed plaintiff's damages at $4,500.On August 13, 1940, judgment for such amount was entered against both defendants.Motion in arrest of judgment and for new trial was denied, and both defendants appeal.

On this appeal defendants contend: (1) that plaintiff failed to prove by a preponderance of the evidence that defendants were guilty of negligence which caused the injuries complained of; (2) that plaintiff was guilty of contributory negligence as a matter of law; (3) that plaintiff failed to prove by a preponderance of the evidence that he was free from contributory negligence; and (4) that the judgment of the trial court was against the great weight of the evidence.Defendants do not challenge the amount of the judgment as being excessive.

Section 4711,1 Comp.Laws 1929(Stat.Ann. § 9.1579), provides in part: ‘(a) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first (1st) see that such movement can be made in safety and shall give a signal as required in this section.’

When defendant driver, going east, decided to turn north near the middle of the block and cross the street directly into the path of westbound traffic, it was his duty to first make proper observation and ascertain if he could safely make such turn and crossing.His own testimony shows he failed to make such observation and, therefore, failed to see plaintiff approaching from the east.Under the existing weather and street conditions and with visibility poor, it was defendant driver's duty to exercise greater care and caution.In Russell v. Szczawinski, 268 Mich. 112, 115, 255 N.W. 731, 732, we said: ‘If it was foggy or misty so that plaintiff's vision was bad or obscured, the duty was incumbent upon him to exercise greater care and caution.’

See, also, Harding v. Blankenship, 274 Mich. 118, 264 N.W. 312.

We need to go no further than defendant driver's own testimony, which we quote in part, to find support for the trial court's conclusion that he was guilty of negligence.

‘Q.Do you remember looking further to the east than just in front of Miller's Dairy?A.Well, no, I didn't.* * *

‘Q.Now that you have thought back over it, you know if you had looked further to the east, or if you had looked more carefully to the east, you would have seen this boy coming, wouldn't you?A.I couldn't say that.I don't know exactly where he was.I didn't see him at all.

‘Q.But if he had been anywhere in this area from River street down to the Packer's store, you would have seen him, wouldn't you?A.I should have, under those conditions.* * *

‘Q.After you crossed the center line, going 10 or 15, there was nothing coming toward you, was there?A.Not that I saw.

‘Q.You didn't look to your right again, did you?A.I looked once.I guess that was all.

‘Q.When was that?

‘A.Before I turned.* * *

‘It was misting enough so that I had the windshield wipers both going and I needed to have the windshield wipers going in order to see properly.All of the windows were up except the one on the left.That was down a little bit.

‘Q.And if you didn't have your windshield wipers going, you would not be able to see properly ahead, would you?I mean there was sufficient mist to keep you from seeing?A.Yes; that's right.

‘Q.So you couldn't, after you turned you couldn't see to your right through the window of your car?A.Well, I don't know if I could or not because I didn't look through it.* * * ‘Q.And you couldn't see to the east, or ahead at all?* * * A. I don't know exactly.Well, no.

‘Q.In other words, you didn't ascertain that you could cut across lanes 1, 2 and 3 safely before you made the turn, did you?A.I could see through the windshield up to the gas tanks.Beyond that I don't know because I didn't look.’

Was plaintiff guilty of contributory negligence as a matter of law in carrying a passenger on a single-seated motorcycle, designed for one person, in violation of ActNo. 318, § 34b, subd. (b), Pub.Acts 1939, which provides: ‘No bicycle or motorcycle shall be used to carry more persons at one time than the number for which it is designed and equipped.’

Violation of such statute by plaintiff was negligence per se.Holmes v. Merson, 285 Mich. 136, 280 N.W. 139;Westover v. Grand Rapids Railway Co., 180 Mich. 373, 147 N.W. 630.However, we have repeatedly held that to preclude recovery by the plaintiff, such negligence must be a contributing cause of the accident.In Ertzbischoff v. Smith, 286 Mich. 306, 311, 282 N.W. 159, 160, it is said: ‘So far as the absence of a lighted headlight on the bicycle is concerned, the violation of 1 Comp.Laws 1929, § 4736, as amended byActNo. 64, Pub.Acts 1931 ([Comp.Laws Supp.1935, § 4736] Stat.Ann. § 9.1604), hereinafter quoted, would not preclude recovery unless it was a proximate cause of the accident.Beebe v. Hannett, 224 Mich. 88, 194 N.W. 542;andArvo v. Delta Hardware Co., 231 Mich. 488, 204 N.W. 134.See, also, Reetz v. Schemansky, 278 Mich. 626, 270 N.W. 811.’

In Brown v. Tanner, 281 Mich. 150, 152, 274 N.W. 744, 745, Mr. Justice Chandler, speaking for the court, said: ‘We are also of the opinion that it was a question for the jury to determine if plaintiff's failure to comply with the provisions of the statute requiring his bicycle to be equipped with a light was a contributing cause of the accident.* * * Gleason v. Lowe, 232 Mich. 300, 205 N.W. 199.’

Also, seeStuck v. Tice, 291 Mich. 486, 289 N.W. 225;Holmes v. Merson, supra;Warwick v. Blackney, 272 Mich. 231, 261 N.W. 310.

Whether plaintiff's violation of the statute by carrying a passenger on a single-seated motorcycle was a contributing cause of the accident, was a question of fact, and not of law, and was for determination by the trial court, sitting as a judge of the facts.

Whether plaintiff was guilty of contributory negligence in failing to see defendants' car in time, or in failing to stop his motorcycle in time, to avoid the accident, was also a question of fact, and not of law.In Brown v. Tanner, supra, 281 Mich. at page 152, 274 N.W. at page 744, we said: ‘Plaintiff was proceeding upon the street in a place where he had a lawful right to be.The intersection was well lighted and there were no vehicles present in the immediate vicinity other than defendant's car.Although plaintiff could undoubtedly have seen defendant had he looked, we are unable to say that he was guilty of contributory negligence as a matter of law for his failure to do so. * * * Whether or...