Tuinstra v. Lynema, 47

• Decision Date: 04 October 1954
• Docket Number: No. 47,47
• Citation: 340 Mich. 534,66 N.W.2d 252
• Parties: Henry TUINSTRA, Plaintiff and Appellee, v. Cornelius LYNEMA, Edson R. Soop and Standard Oil Company, a foreign corporation, Defendants, and Appellants, Russell Campbell, Defendant.
• Court: Michigan Supreme Court

Page 252

66 N.W.2d 252

340 Mich. 534

Henry TUINSTRA, Plaintiff and Appellee, v. Cornelius LYNEMA, Edson R. Soop and Standard Oil Company, a foreign corporation, Defendants, and Appellants Russell Campbell, Defendant.

No. 47.

Supreme Court of Michigan.

Oct. 4, 1954.

Varnum, Riddering, Wierengo & Christenson, Grand Rapids, for appellants Edson R. Soop and Standard Oil Co.

Lokker Den Herder & Boter, Holland, for appellant Cornelius Lynema.

Dwight M. Cheever and Leo W. Hoffman, Allegan, for appellee.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff sued to recover for damages resulting from personal injuries sustained as a guest passenger in an automobile driven by his brother-in-law, defendant Lynema, when the latter undertook to pass the automobile of defendant Campbell and collided head on with one driven by defendant Soop and owned by defendant Standard Oil Company. Defendants' motions for directed verdict, judgment non obstante veredicto, and new trial were denied, the jury returning a verdict for plaintiff of $30,799.78 against defendants Lynema, Soop and Standard Oil Company, who appeal from judgment thereon, and for defendant Campbell of no cause for action with respect to which plaintiff does not appeal.

We consider first the appeal of defendants Soop and Standard Oil Company, starting with their asserted right to judgment non obstante veredicto. For that purpose the testimony, viewed in the light most favorable to plaintiff, discloses the following: That Lynema was driving in a southerly direction and, at a point a mile back from the scene of the accident, got over on to the left side of the pavement to pass an automobile, never returning to the right side again; that thereafter he undertook to pass Campbell's automobile, which accelerated, but he nonetheless drove up alongside it and the two automobiles then proceeded abreast of each other at a speed of from 50 to 55 or 60 miles per hour for a distance of one-half mile; that while they were proceeding thus defendant Soop's automobile, approaching them from the south, hove into sight from behind foliage around a slight curve 1,000 feet distant; that plaintiff then told Lynema to "pull in," but that he failed to do so although plaintiff thought that he could have done so at that time; that there were other automobiles ahead of Campbell also proceeding south but at a slower rate of speed than he; that Lynema admitted seeing the Soop automobile first when it was 600 or 700 feet distant, considered getting ahead of the Campbell car and onto his right side of the pavement, decided he could not do so because the car ahead of Campbell was too close, then considered getting in behind Campbell but believed he could not do so because at the moment the latter, as well as Lynema, had begun to slow down, and then, when 250 to 300 feet separated him from Soop's on-coming car, he began to turn left onto the east shoulder; that the shoulder was 6 feet wide, hard and firmly constructed of gravel; that as Soop approached and saw or should have seen Lynema coming on the east lane of the pavement, he did not pull off onto the shoulder to permit Lynema to get through, but, as he testified, merely applied his brakes and pulled over to the east edge of the pavement; that after Lynema drove onto the shoulder Soop also drove partially onto the shoulder and a collision occurred between their automobiles on the east edge of the pavement.

In the face of such facts should Soop be held to have been free from negligence, as a matter of law? Did plaintiff fail to sustain the burden of proving Soop guilty of any negligence which was a proximate cause of plaintiff's injuries, or, on the contrary, did Soop's failure to drive onto the shoulder while Lynema was approaching him on the pavement, or his partial turning onto the shoulder thereafter, and his whole course of conduct, in the light of what was plainly there to be seen by him, present a question of fact for the jury as to whether he had been guilty of such negligence? The meaning of Lijewski v. Wrzesinski, 328 Mich. 129, 43 N.W.2d 88, Molnar v. Gordon, 337 Mich. 615, 60 N.W.2d 485, and Bramer v. Ames, 338 Mich. 226, 61 N.W.2d 160, is definitely that when a motorist, driving on his own right side of the pavement, meets another wrongfully approaching him in that same lane, the former must "use such means as was fairly within his power to avoid the collision", including turning out to the right if he can safely do so and it reasonably appears necessary in order to avoid an accident; and that failure so to do gives rise to a question of fact as to his negligence. While Soop had a right to rely on the assumption that Lynema would observe the law and get back on his own side, nevertheless, if, in due course, it appeared or should have become apparent to a reasonable person in Soop's position that Lynema could not or was not going to do so and if, at that time, Soop still could have acted in safety to avert the collision a duty arose on his part to act accordingly. Whether that was or was not the situation and, consequently, whether he was guilty of negligence, was a question of fact for the jury.

Defendants Soop and Standard Oil Company also contend that the verdict was against the great weight of the evidence. In this connection they point to testimony of defendants' witnesses that the collision occurred almost immediately after Lynema pulled out to pass Campbell, when Soop's car was only 300 feet distant, and also to testimony that foliage at the curve which Soop was approaching just before the scene of the accident interfered with vision to the extent that the Lynema car became visible to Soop not when it was 1000 feet distant, as plaintiff...