Yampolsky v. Smith
| Decision Date | 05 April 1948 |
| Docket Number | No. 64.,64. |
| Citation | 320 Mich. 647,32 N.W.2d 8 |
| Parties | YAMPOLSKY v. SMITH. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.
Action by Paul A. Yampolsky against Frank Smith for personal injuries. From the judgment, plaintiff appeals.
Affirmed.
Before the Entire Bench.
Bernstein & Bernstein, of Detroit (Edwin S. Moag, of Detroit, of counsel), for appellant.
Edward N. Barnard, of Detroit, for appellee.
Plaintiff, Paul A. Yampolsky, brought suit for damages for injuries sustained in an automobile accident that occurred at one o'clock in the afternoon of November 25, 1943. Upon the conclusion of plaintiff's proofs before a jury, defendant moved for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law. Decision upon this motion was reserved by the trial judge under the Empson Act, 3 Comp.Laws 1929, §§ 14531-14534, Stat.Ann. §§ 27.1461-27.1464. Defendant then put in his proofs, and the case was submitted to the jury, which returned a verdict for plaintiff for $1,625. Defendant thereupon filed a motion for judgment non obstante veredicto, and the trial judge granted it, ordering that judgment of no cause of action be entered for defendant. Plaintiff appeals from this order.
Notwithstanding some glaring inconsistencies in plaintiff's testimony, we give it full credence in determining whether the motion for judgment non obstante veredicto was properly granted. According to plaintiff, the accident occurred as follows: Plaintiff was driving north on LaSalle Boulevard in the city of Detroit, and defendant's car, being driven by his agent, was traveling west on Lothrop Avenue, an intersecting street. The pavements were dry and the weather clear. LaSalle Boulevard is about 40 feet wide, Lothrop is about 30 feet wide, and both streets are of equal importance. As plaintiff neared the intersection, he slowed down from 15 miles per hour to 7 or 8 miles per hour. He looked first to his left (west) and then to his right (east), and to the east he saw defendant's car approaching 150 feet away at a speed of approximately 30 miles per hour. He made this observation when he was about 20 feet from the sidewalk line, which would place him about 45 to 50 feet from the center of the intersection. Plaintiff looked again to the east when he reached the intersection, and at that time defendant's car was 100 feet away and had slowed down. Plaintiff testified that he concluded defendant's driver intended to stop or slow down to yield the right of way to him, and that he proceeded to cross the intersection, accelerating his speed as he did so. When he reached the middle of the intersection, plaintiff looked again to the east and discovered defendant's car bearing down on him about 35 or 40 feet, two car lengths, away at 40 to 45 miles per hour. Plaintiff attempted to further accelerate his car and to swerve to the left to avoid a collision. It was too late to do so, however, and the accident occurred.
Plaintiff contends that under such circumstances the issue of his contributory negligence was a question for the jury, and that the trial judge erred in ruling that plaintiff was guilty of contributory negligence as a matter of law.
Plaintiff relies upon the rule followed in Stuck v. Tice, 291 Mich. 486, 289 N.W. 225, and Strong v. Kittenger, 300 Mich. 126, 1 N.W.2d 479. In the Stuck case we held that the issues of contributory negligence was properly submitted to the jury where it appeared that the driver of plaintiff's vehicle had maintained a continual watchfulness, had proceeded at a constant rate of speed, and had seen defendant's vehicle slow down so as to give the impression that it was either being brought to a stop or that it was going to be turned, there being a question of fact presented upon which reasonable minds might differ as to whether or not plaintiff acted prudently in proceeding across the intersection under such circumstances. In the Strong case the same issue was presented and we adhered to our decision is Stuck v. Tice, supra.
The present case differs from both the cited cases in the following respect: In the instant case it appears from plaintiff's own testimony that not only was the speed of defendant's vehicle reduced as it approached the intersection, but also the speed of plaintiff's vehicle was reduced. Plaintiff testified that he had been traveling 15 miles an hour, and that as he started to cross the intersection he was traveling only 7 or 8 miles an hour. The obvious inference is that he slowed down as he came up to the intersection. If the plaintiff slowed down, it would convey the same impression to the driver of defendant's vehicle that the reduction in speed of defendant's vehicle conveyed to plaintiff. Under such circumstances, the rule of Stuck v. Tice, and Strong v. Kittenger should not be applied.
De Vries v. Owens, 295 Mich. 522, 295 N.W. 249, another case in which the rule of Stuck v. Tice was applied, also differs from the case at bar in...
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White v. Herpolsheimer Co.
...809. Such rule obtains in the case at bar notwithstanding inconsistencies in the testimony of plaintiff and her witness. Yampolsky v. Smith, 320 Mich. 647, 32 N.W.2d 8. While defendant was not the insurer of the safety of plaintiff, it was its duty to use proper care to provide a reasonably......
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...notwithstanding that certain inconsistencies and contradictions may be deemed to exist in plaintiff's testimony. Yampolsky v. Smith, 320 Mich. 647, 32 N.W.2d 8. In Thompson v. Michigan Cab Co., supra [279 Mich. 370, 272 N.W. 711], which was an action to recover damages for injuries sustaine......
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Staunton v. City of Detroit, s. 15-17
...809. Inconsistencies or contradictory statements in the testimony of witnesses does not bar the application of the rule. Yampolsky v. Smith, 320 Mich. 647, 32 N.W.2d 8. In their declarations the plaintiffs alleged that defendant's employee was operating the bus at an excessive rate of speed......
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Knoor v. Borr, 1
...of the rule as to the interpretation of the testimony by the court in passing on the correctness of a directed verdict. Yampolsky v. Smith, 320 Mich. 647, 32 N.W.2d 8. The court was in error in directing a verdict as to the defendant Harold The facts in the case are somewhat analogous to th......