Van Gilder v. C. & E. Trucking Corp.
| Decision Date | 12 June 1958 |
| Docket Number | No. 54,54 |
| Citation | 352 Mich. 672,90 N.W.2d 828 |
| Parties | Stanley VAN GILDER, Plaintiff and Appellant, v. C. & E. TRUCKING CORPORATION, a foreign corporation, and Emmett Hansen, Defendants and Appellees. Jan. Term. |
| Court | Michigan Supreme Court |
Gore & Williams, Benton Harbor, for plaintiff-appellant.
Seymour & Seymour, Benton Harbor, for defendants-appellees.
Before the Entire Bench.
Plaintiff's automobile and the tractor of defendant corporation, driven by defendant Hansen, hereinafter called defendant, were involved in a collision described in plaintiff's declaration as motion for a directed verdict of no cause for action pursuant to C.L.1948, § 691.701 (Stat.Ann. § 27.1471). Plaintiff appeals.
The accident occurred at 2:40 a. m. on a north and south, 40-foot, 4-lane, concrete highway, which was icy at the time. Plaintiff's theory of the case, as alleged in his declaration and sought to be proved by his unsupported testimony, is as follows: as he drove his automobile south at about 30 miles per hour on the innermost of the 2 southbound lanes, he saw defendants tractor approach from the south on the east side of the center line, but when it was about 50 feet distant it took an angle right at him, crossing over the center line of the highway; plaintiff then turned his wheel quickly to the left to avoid an accident but his automobile had not yet crossed east of the center line when a big crash occurred.
Defendants' theory, according to the allegations in their answer and the testimony of defendant Hansen, is that while he was driving the tractor north at about 25 miles per hour in the most easterly of the 2 northbound lanes plaintiff's automobile skidded sideways, in a southeasterly direction, from the inner southbound lane, across the center line and the inner northbound lane, and hit defendants' tractor broadside in the east lane, the right rear fender and door of plaintiff's automobile striking the left front fender and bumper of defendants' tractor.
Here, as in Carlson v. Brunette, 339 Mich. 188, 63 N.W.2d 428, 429, The parties' conflicting claims and theories of the case being as above noted, it is obvious that rejection of plaintiff's theory must result in judgment for defendants. As we said in Hormel's Estate v. Harris, 348 Mich. 201, 82 N.W.2d 450, 453, 'Plaintiff must stand or fall on its [his] pleadings, proofs and theory of the case presented thereby.'
Plaintiff refers to the 'scintilla of evidence doctrine', citing Davis v. New York Central R. Co., 348 Mich. 262, 83 N.W.2d 271, which speaks in no such terms, but, rather, reiterates out long-standing rule that on appeal from directed verdict for defendant we view the evidence in the light most favorable to plaintiff and draw the reasonable inferences therefrom which are in his favor. This rule we have applied, even though the case be one of direction of verdict after jury disagreement. Levesque v. LaFortune, 348 Mich. 443, 83 N.W.2d 333, and cases therein cited. With that rule in mind, plaintiff's theory of the case boils down to this--that, viewing the evidence in the light most favorable to him, the collision occurred on his side of the center line of the highway while he was driving where he had a right to be without any negligence on hir part whatsoever, the accident being caused by defendant's negligence in driving onto the wrong side of the highway and, hence, the court erred in directing a verdict for defendants.
Defendants respond that the undisputed physical facts refute plaintiff's theory of the case, establish that of defendants, and, therefore, require a holding in defendants' favor as a matter of law. Those undisputed physical facts are the following immediately after the accident plaintiff's automobile came to rest on the east shoulder of the highway, facing southwest, and defendants' tractor was up against and west of plaintiff's car, facing southeast, with its front and left side off the pavement and its right rear on the east lane of the pavement; there were skid marks on the pavement extending from the inner southbound lane southeasterly to the point in the east lane where the impact occurred as determined by location debris; such debris, consisting of bumpers, bumper braces, glass from headlights, dirt from underneath fenders, a car seat, a jack, pieces of metal and 'shuff that had fallen off the car', lay only on the most easterly lane and the east shoulder of the highway at the point where the automobiles and tractor had come to a stop and there was none west of the center line; plaintiff lay on the ground east of and near the left front fender of his automobile.
The rule that, in considering whether defendant is entitled to a judgment of no cause for action as a matter of law, we take the view of the evidence most favorable to plaintiff, stems from the necessity of having a determination by someone of what the facts are to which the relevant law is to be applied and from recognition of the right of plaintiff, in case of conflicting testimony or evidence from which more than one conclusion might be drawn, to have that determination of facts made by a jury, whose province is not, on appeal, to be invaded or usurped by us; and, consequently, if there is any credible testimony which the jury might properly believe and which would permit it to find for plaintiff, he is entitled to have it accepted by us as the truth to which the law is to be applied. When, however, the case is not one in which the sole source of information for the jury is disputed and conflicting testimony, but added thereto are undisputed physical facts permitting of but one conclusion, utterly inconsistent with and flatly contradictory to plaintiff's theory of the case, these may not be disregarded and credence be given only to the inconsistent, disputed testimony which is most favorable to plaintiff in determining the rights of the parties as a matter of law. Plaintiff has no constitutional right to have a determination of facts by a jury inconsistent with the undisputed physical facts of the case. On the contrary, such facts overcome testimony inconsistent therewith and are controlling of decision, leaving a jury determination with respect to facts established by the undisputed physical facts unnecessary. Champaign v. Detroit United Railway, 181 Mich. 672, 148 N.W. 201; Molby v. Detroit United Railway, 221 Mich. 419, 191 N.W. 29; Downey v. Pere Marquette Railway Co., 230 Mich. 243, 202 N.W. 927; Molda v. Clerk, 236 Mich. 277, 210 N.W. 203; Rushford-Surine v. Grand Trunk Railway Co., 239 Mich. 19, 214 N.W. 168; Brady v. Pere Marquette Railway Co., 248 Mich. 406, 227 N.W. 737; Richman v. Detroit, G. H. & M. Ry. Co., 254 Mich. 607, 236 N.W. 878; DePotty v. City of Detroit, 258 Mich. 657, 242 N.W. 799; Heintzelman v. Pennsylvania R. Co., 260 Mich. 688, 245 N.W. 548; Rybarczyk v. New York Central R. Co., 276 Mich. 131, 267 N.W. 804; Carlson v. Brunette, 339 Mich. 188, 63 N.W.2d 428. In Brady we said [248 Mich. 406, 227 N.W. 738]:
'The court still heeds physical facts, even though disputed by testimony.'
In DePotty we said of the testimony of a plaintiff that it 'does not raise an issue of fact if such testimony is contrary to the physical facts.' [258 Mich. 657, 242 N.W. 800.] Concerning this rule that the undisputed physical facts control, announced in Champaign and followed in the other cases above cited, we may say here as we did in Molby [221 Mich. 419, 191 N.W. 30]:
In the case at bar the only reasonable conclusions that can be drawn from the undisputed physical facts are inconsistent with plaintiff's theory of the case. Cited by plaintiff, but not in point, is Albrecht v. Pritchard, 347 Mich. 166, 79 N.W.2d 424, 426, in which we said:
'Indeed, and in the present case, the trier of facts would have been justified in finding that located presence of such debris is just as consistent with plaintiff's theory as with that of defendant.'
Here the location of the skid marks, debris and the 2 vehicles immediately following the accident is absolutely inconsistent with plaintiff's theory that the accident happened in the west half of the highway and establishes, instead, defendants' claim in that regard. It follows that the court was correct in directing a verdict for defendants because the state of the record would not have permitted a jury finding of defendant's negligence or plaintiff's freedom from contributory negligence.
Plaintiff also complains of error in the trial court's rejection of an offer of proof, contained in a special record, that his brother-in-law visited the scene of the accident some 5 or 6 hours after its occurrence and found fragmentary pieces of glass and chrome on the center line of the highway or west of it. In view of the undisputed testimony that there was none there immediately following the accident and that a short while later, at the direction of police officers, debris was removed and the pavement was swept at the scene of the accident by a person who found no glass or debris on the west half of the pavement, the fact that the highway involved is a much travelled trunkline, and the utter lack of testimony that no change in location of debris had occurred from time of the accident until arrival of plaintiff's br...
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