Wilson v. Corwin

• Decision Date: 02 December 1941
• Docket Number: No. 3.,3.
• Citation: 299 Mich. 494,300 N.W. 857
• Parties: WILSON v. CORWIN.
• Court: Michigan Supreme Court

299 Mich. 494

300 N.W. 857

WILSON

v.CORWIN.

No. 3.

Supreme Court of Michigan.

Dec. 2, 1941.

Action by Martha A. Wilson against Otis Corwin arising out of an automobile collision at a highway intersection. Judgment for defendant and plaintiff appeals.

Affirmed.Appeal from Circuit Court, Kalamazoo County; Geo. V. Weimer, judge.

Argued before the Entire Bench.

Howard, Howard & Howard, of Kalamazoo, for appellant.

Mason, Sharpe & Stratton, of Kalamazoo, for appellee.

NORTH, Justice.

This is an automobile collision case heard in the circuit court without a jury. Defendant had judgment and plaintiff has appealed. In effect appellant's contention is that the trial judge erred when from the testimony he reached the following conclusion:

‘Defendant's claim is more reasonable, likely and probable than plaintiff's, and is supported by the testimony of several disinterested witnesses as well as the physical facts, particularly the positions of the cars after the collision.

‘I am unable to find that the evidence in its entirety preponderately establishes that the collision occurred in the manner, in the circumstances claimed by plaintiff. In the absence of such finding, there is, of course, no theory upon which plaintiff may recover.’

There is direct conflict in the testimony offered in behalf of the respective parties both on the issue of defendant's negligence and of negligence of the driver of plaintiff's car. Shortly before noon on the day of the accident plaintiff and her husband as driver were proceeding south on highway M-184 which at its southerly end junctioned at right angles with M-89, which is a through highway with an 18 foot pavement. Just north of the corner there is a stop sign on M-184. Defendant came from the east on M-89. To the east from the corner the through highway is on an upgrade of approximately 10% for about 350 feet, but from the junction of the two highways an automobile approaching from the east can be seen for more than 450 feet. As one approaches the corner from the north his view to the east is somewhat obstructed by a bank of earth and a wholly clear view to the east along M-89 is not obtainable until one is in relatively close proximity to the north edge of the pavement. The automobiles involved in this accident collided just a little east of the corner, and plaintiff was seriously injured.

Plaintiff claims that she and her husband at the time of the accident were exercising due care and caution, that they stopped their car approximately 5 feet from the north edge of the pavement in order to get a view along M-89 and that they there made an observation to the east, that they had a clear view to the crest of the hill and not seeing any approaching traffic they drove onto M-89, that when about to turn east and while crossing the northerly traffic lane on M-89 plaintiff's husband saw defendant's car coming over the hill from the east at a high rate of speed-between 55 and 70 miles per hour, on a pavement slippery because of rain or mist. Plaintiff further claims that although their car got to this stop, then we started ahead and east, defendant, as he approached, lost control of his car and being unable to stop it by use of his brakes skidded into plaintiff's car, throwing it around so that it was headed west when it stopped, and that defendant's car stopped on the south side of the pavement headed in a southerly direction. Plaintiff testified: ‘After we came to this top, then we started ahead and went straight across * * * to the south half of the pavement on M-89, then we turned east. Prior to the collision we...