Weller v. Mancha
| Decision Date | 24 December 1957 |
| Docket Number | No. 56,56 |
| Citation | 87 N.W.2d 134,351 Mich. 50 |
| Parties | Vera Marie WELLER, Administratrix of the Estate of Ernest B. Weller, Deceased, Plaintiff and Appellant, v. George MANCHA and Cesario Mancha, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Allaben, Davids & Massie, Grand Rapids, for plaintiff and appellant.
Luyendyk, Hainer, Hillman, Karr & Dutcher, Grand Rapids, for defendants and appellees.
Before the Entire Bench.
This is an action to recover damages resulting from the collision of two automobiles at a highway intersection. The accident occurred on February 22, 1956, at approximately 2 o'clock in the afternoon. At the time plaintiff's decedent, Ernest B. Weller, was driving his automobile in an easterly direction on 18-Mile road in Tyrone township, Kent county. Defendant George Mancha, driving an automobile to which the other defendant held the certificate of title, approached the intersection from the north on Tyrone road. The Weller car was proceeding at approximately 30 miles per hour as it entered the intersection. Defendants' automobile was being driven at a rate of speed of between 45 and 50 miles per hour. The cars came together at a point near the center of the intersection and as a result Mr. Weller was thrown from his automobile, sustaining injuries that resulted in his death several days later.
The present action was brought by the administratrix of the estate in accordance with the provisions of the statute (C.L.1948, § 691.581 et seq. [Stat.Ann.1955 Cum.Supp. § 27.711 et seq.]). On the trial in circuit court testimony was introduced by plaintiff for the purpose of showing how the accident occurred and the resulting damages. At the conclusion of such proofs defendants moved for a directed verdict, decision thereon being reserved. The testimony of defendant George Mancha was received and at the conclusion of the proofs defendants renewed their motion for a directed verdict, claiming that plaintiff's decedent was guilty of contributory negligence as a matter of law. Decision on the motion was again reserved, and the issues in the case were submitted to the jury. Verdict in the sum of $3,568.08 was returned said amount being the aggregate of expenses shown to have been incurred by the estate for hospital and medical attendance, for damage to the automobile, and for sums expended in connection with the funeral.
Plaintiff moved for a new trial limited to the question of damages, claiming as the basis thereof that the amount of the verdict was grossly inadequate. Defendants asked for the entry of judgment notwithstanding the verdict, for the reasons alleged in the motions made in the course of the trial. The trial judge in a carefully considered opinion came to the conclusion that on the record in the cause plaintiff's decedent was guilty of contributory negligence as a matter of law, in accordance with prior decisions of this Court in similar cases. Judgment was entered for defendants, and plaintiff has appealed. The motion of the latter for a new trial limited to the issue of damages was denied. Appellant asks that the judgment entered on the motions be set aside, and that this Court order a limited new trial. In his opinion the trial judge indicated that if a new trial were to be granted it should be general, rather than limited, in the interests of justice.
Decision in the case must rest on the basis of the facts as disclosed by the record before us. At the time of the accident the weather was clear, and it appears that as the two automobiles approached the intersection there was no obstruction to the view of either driver. The highways were gravel roads, and enither was a through thoroughfare. Plaintiff called as a witness a member of the Michigan State Police who investigated the occurrence shortly after the collision. This witness testified in substance that it was his conclusion from the marks that he found on the highways within the intersection that the impact occurred in proximity to the center, that the two roads were of approximately equal width, and that it was 'a wide open intersection' with nothing to interfere with vision in any direction.
Plaintiff administratrix testified that she was riding with her husband Ernest Weller on the occasion in question, that they were proceeding east on 18-Mile road, and that they were going to a funeral to be held at a church on said road just east of the intersection. She did not see defendants' car prior to the impact. The only witness who testified to observations of the collision between the automobiles was also driving east on 18-Mile road at approximately 30 miles per hour. The Weller car passed him about three-fourths of a mile to the west of the intersection, and the witness observed it from that time until the collision took place. After the passing, the Weller car was approximately 600 feet ahead of the car of the witness, and the two vehicles proceeded easterly separated by that distance. The witness did not see defendants' car prior to the moment of impact. After the collision he examined the intersection and noted where the cars skidded following the impact. He found no marks north of the point of contact, and none to the west. His observation of the Weller car did not permit him to see whether the driver actually made any observation to the north as he approached the intersection.
The witness further testified that the traveled portion of Tyrone was about 24 feet, that the corresponding portion of 18-Mile road was approximately 18 feet, and that the intersection was enlarged by 'the curved corners.' In his opinion, based on his observation, an automobile could be turned either way in safety at a speed of 30 miles per hour. The witness thought that at the time of the impact 10 feet of the Weller car had crossed the center line of Tyrone, leaving 6 feet west of said line.
It is conceded that defendant George Mancha was guilty of negligence in the operation of his car. He testified that he was driving from 45 to 50 miles per hour, and that he did not see the Weller car until the instant of the impact. Obviously he was not keeping a proper lookout under the circumstances for other traffic that might be approaching the intersection. In his charge to the jury the trial court referred to the admission made on the record as to the negligence of said defendant, submitting as the principal issue in the case the question as to the alleged contributory negligence on the part of plaintiff's decedent.
The testimony in the case indicates that each driver approached the intersection without considering possible traffic on the intersecting road. It is fair inference also that the automobiles of the parties entered the intersection at approximately the same time. The fact that the car of plaintiff's decedent was on the right of defendants' vehicle did not excuse Mr. Weller from making reasonably careful observations for his own safety, and from acting accordingly. There is no direct proof as to whether he did, or did not, look to the north as he approached Tyrone road. That it was his duty to do so is not open to question. If we assume that he looked, the conclusion necessarily follows that he must have observed the Mancha car approaching at a speed between 45 and 50 miles per hour. There is no claim that defendants' automobile either changed its direction or decreased its speed. The inference to be drawn from the proofs is that neither occurred. If Mr. Weller made the observations that due care required of him he was guilty of negligence as a matter of law in not acting accordingly for his own safety. The testimony of plaintiff's witness, above mentioned, indicates that decedent neither decreased nor accelerated his speed, or sought to turn to his right to avoid a collision with defendants' car. If it be assumed that he did not look to the north at all as he entered the intersection, or immediately prior thereto, the inference of negligence also follows. Assuming that he made the observation, he must be held to have seen what was there on the highway within his unobstructed view.
As pointed out by the trial judge in his opinion, this Court has in a number of prior decisions given consideration to factual situations analogous to that in the case at bar. In Kok v. Lattin, 261 Mich. 362, 246 N.W. 149, the collision involved occurred at the intersection of two gravel roads, the vehicles reaching the intersection at approximately the same time. Neither driver saw the other until the cars were about six feet apart. The plaintiff's car as it entered the intersection slowed down to 20 miles an hour. Defendant was driving at a speed of 40 miles an hour, and did not decrease such speed as he came to the intersection. Commenting on the situation, it was said:
The facts in the above case are practically identical with those in the instant controversy, except that neither party involved in the collision sustained injuries resulting in death.
In Heckler v. Laing, 300 Mich. 139, 1 N.W.2d 484, 486, defendant was driving on a trunkline highway in a northerly direction. Plaintiff's decedent approached on an intersecting road,...
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