Trafamczak v. Anys

• Decision Date: 05 April 1948
• Docket Number: No. 18.,18.
• Citation: 31 N.W.2d 832,320 Mich. 653
• Parties: TRAFAMCZAK v. ANYS.
• Court: Michigan Supreme Court

320 Mich. 653

31 N.W.2d 832

TRAFAMCZAK

v.ANYS.

No. 18.

Supreme Court of Michigan.

April 5, 1948.

Appeal from Circuit Court, Gogebic County; Thomas J. Landers, judge.

Action for injuries sustained in truck accident by Mike Trafamczak against William Anys. From the judgment, the defendant appeals.

Affirmed.

Before the Entire Bench.

Ivan D. Wright, of Ironwood, for defendant and appellant.

William G. Cloon, of Ironwood (S. W. Patek, of Ironwood, of counsel), for plaintiff and appellee.

CARR, Justice.

This case results from an automobile accident occurring about 3:30 in the morning of February 22, 1942. Plaintiff and one Walter Glaser were riding in a truck owned and driven by defendant. Approximately four miles south of the village of Watersmeet in Gogebic county, the vehicle left the traveled portion of the highway, comint to a stop in the ditch on the left side of the road. Plaintiff sustained serious injuries, and instituted the present suit to recover damages therefor. The case was tried before a jury, which returned a verdict in plaintiff's favor in the sum of $5,314.50. Defendant's motion for a new trial was denied, and he has appealed.

The record does not set forth the pleadings, but it appears that the case was tried on behalf of plaintiff on the theory that the accident resulted from defendant's negligence in failing to keep a reasonable and proper outlook for plaintiff's safety. It is conceded that plaintiff was asleep at the time of the accident, and no question is presented as to contributory negligence on his part. On behalf of plaintiff, testimony was offered on the trial to the effect that following the accident defendant made admissions indicating that he was asleep when the truck left the highway. Defendant denied the alleged statements, and claimed that he was fully awake at the time. It was also plaintiff's claim that he paid defendant the sum of two dollars for the privilege of riding in the truck. Defendant denied such payment, and the issue was submitted to the jury under instructions that plaintiff could not recover unless they found from the evidence that plaintiff had paid defendant as claimed. The jury determined the issue in plaintiff's favor, thus disposing of the claim that plaintiff was a guest passenger and that defendant was not liable in the absence of gross negligence or wilful and wanton misconduct on his part.^*

FN^* See 1 Comp.Laws 1929, § 4648, Stat. Ann. § 9.1446.

It is the claim of defendant that the evidence in the case did not justify the finding of the jury that defendant was guilty of negligence constituting the proximate cause of the accident. At the conclusion of plaintiff's proofs a motion for a directed verdict was made by defendant and was denied by the trial court. It was renewed at the conclusion of the case with like result. If, as plaintiff claimed on the trial, the accident happened because defendant fell asleep while driving, negligence on the latter's part was thereby established. Devlin v. Morse, 254 Mich. 113, 235 NW. 812;Perkins v. Roberts, 272 Mich. 545, 262 N.W. 305. No claim is made that such conduct constituted gross negligence or wilful and wanton misconduct. If, on the other hand, defendant's version as to what occurred is correct, the conclusion is fully justified that he was not keeping a reasonable and proper outlook. The night was clear, and no claim is made that defendant's vision was in any way obstructed. Neither is there any proof that the truck left the highway because of coming in contact with any obstruction, or that it skidded because of a slippery condition of the surface of the road. Defendant, called for cross-examination by the plaintiff, testified that the accident happened on a gradual curve, that his windshield was clear, and that he did not go to sleep before the accident. The following excerpt from his examination by his own counsel indicates his theory as to what occurred:

‘Q. Now, Bill, just how did this accident happen? A. I was driving down the road, hitting north, coming from the south and I don't know what went wrong but my oil gauge was not working just right although the car had been just overhauled and I was more or less watching it and I don't know how we got in the ditch yet.

‘Q. You mentioned the oil gauge, what did the oil gauge show? A. The oil gauge kept dropping all the time.

‘Q. What connection did the oil gauge have with anything that happened? A. I probably was looking at the oil gauge and if I glanced at the oil gauge I went in the ditch.

‘Q. At the time the accident happened how fast do you think you were going? A. About 25 or 30 miles per hour.

‘Q. How long do you think you may have looked down at the oil gauge at one time? A. Probably a few seconds.

‘Q. Long enough to go about how far? A. A couple hundred feet.

‘Q. You went into the ditch on the left side of this curve? A. Yes.'

Except as indicated by the testimony quoted, defendant offered no explanation as to the cause of his truck leaving the highway. It is apparent that he was not watching the road immediately prior to the accident. His own testimony fully justified such conclusion. It is true that an inference of negligence may not be drawn from the mere fact that an accident occurred. The doctrine of res ipsa loquitur does not obtain in this State. Watrous v. Conor, 266 Mich. 397, 254 N.W. 143;Weissert v. City of Escanaba, 298 Mich. 443, 299 N.W. 139;Ionia School District v. Dadd, 308 Mich. 220, 13 N.W.2d 268, However, proper inferences may be drawn from the facts disclosing the manner in which the accident has taken place. Heppenstall Steel Co. v. Wabash R. Co., 242 Mich. 464, 219 N.W. 717;Hazen v. Rockefeller, 303 Mich. 536, 6 N.W.2d 770. The testimony of the defendant, above quoted, is consistent with that of his witness, Glaser, who was riding in the car at the time of the accident. According to the latter, he was watching the oil gauge and was carring on a conversation with defendant with reference to it immediately prior to the accident.

It is a logical conclusion from the evidence that defendant was not keeping a proper outlook. It was his duty to observe the road and not permit his attention to be distracted by some matter that did not constitute a hazard to the operation of his car. No claim is made that an examination of the oil gauge, or any discussion concerning it, was imperative at the time. Nevertheless, defendant, according to his own admission, permitted his observation to be diverted from the road for several seconds while the car was proceeding a distance of approximately 200 feet. Under the circumstances, this did not constitute due care. In Wineman v. Carter, 212 Minn. 298, 4 N.W.2d 83, it was said (syllabus by the court):

‘A normal boy in his sixteenth year held guilty of negligence as matter of law in so driving an automobile that it collided with another parked on the street, the collision being the result of his inattention while picking up a lighted cigarette which he had just dropped.'

Likewise in Sheehan v. Foster, 80 Cal. App. 56, 251 P. 235, it was held that defendant had not exercised ordinary care and diligence for the safety of the plaintiff because, while driving 12 to 15 miles an hour, he neglected to watch the road while endeavoring to pick up the ignition key that had fallen to the floor of the car. See, also, Orme v. Farmer, 268 Mich. 425, 256 N.W. 470;Breckenridge v. Arms, 279 Mich. 384, 272 N.W. 716;Dreyer v. Otter Tail Power Co., 205 Minn. 286, 285 N.W. 707,287 N.W. 13;Bashor v. Bashor, 103 Colo. 232, 85 P.2d 732, 120 A.L.R. 1507. Whether defendant's failure to observe the highway before him was due to his falling asleep, or to the reason suggested in his own testimony, the conclusion cannot be avoided that he failed to observe the duty resting on him. His claim that the evidence did not establish negligence on his part is without merit.

Error is predicated on the admission, over defendant's objections, of the testimony of a deputy sheriff of the county, who was a witness in plaintiff's behalf. Said witness had in his possession the report that he had taken from the defendant, following the accident, under the provisions of 1 Comp.Laws 1929, § 4722, as last amended by Pub.Acts 1939, No. 318, Comp.Laws Supp.1940, § 4722, Stat.Ann. 1947 Cum.Supp. § 9.1590. Under the specific terms of said statute, a report so made is not ‘available for use in any court action.’ The...