Zebell v. Krall, 16

• Decision Date: 03 June 1957
• Docket Number: No. 16,A,16
• Citation: 348 Mich. 482,83 N.W.2d 288
• Parties: Wilbur C. ZEBELL, Plaintiff and Appellant, v. Kathryn F. KRALL and Howard Krall, Defendants and Appellees. pril term.
• Court: Michigan Supreme Court

Page 288

83 N.W.2d 288

348 Mich. 482

Wilbur C. ZEBELL, Plaintiff and Appellant, v. Kathryn F. KRALL and Howard Krall, Defendants and Appellees.

No. 16, April term.

Supreme Court of Michigan.

June 3, 1957.

Mitts, Smith & Haughey, Grand Rapids, for appellant.

Hammond & Insley, Benton Harbor, for appellees.

Before the Entire Bench.

KELLY, Justice.

Plaintiff appeals from judgment of no cause for action entered after a jury verdict for defendants. Plaintiff contends that the trial court erred in refusing to grant his motion for a new trial because the court erred in instructing the jury and because the verdict was contrary to the great weight of the evidence.

Plaintiff was injured June 16, 1954, about 6:00 p. m., when his car collided with the Krall car as defendant Howard Krall was making a left-hand turn to enter a driveway.

Plaintiff, a married man, 44 years of age, resided in Millburg, and was engaged in the business of producing and manufacturing concrete blocks. On the day of the accident he left his place of business about 5:15 in the afternoon with the intention of driving 6 miles east of Millburg to make a collection from a man who owed him money. He first stopped at a tavern in Millburg to meet a friend and, he testified, he had one drink consisting of about 3/4 of an ounce of whiskey and a glass of beer. As he left Millburg he proceeded east on Territorial road, which is a blacktop road 18 to 20 feet in width. It had rained shortly before the accident occurred and the pavement was wet, old and rough. Plaintiff testified that he first observed defendant's car as plaintiff came up over a low spot in the highway about 1,200 to 1,500 feet west of the store and that defendant was pulling onto the highway from the store's driveway; that from then on up to the time of collision defendant's car remained within his vision; that he was driving 45 to 50 miles per hour; that defendant was proceeding in the same easterly direction as he was, at, he would judge, 10 to 15 miles per hour; that defendant was driving on the right shoulder with the left wheels of his car on the pavement; that about 270 feet east of where defendant came from the store driveway the collision took place; that as he approached defendant's car he pulled over to the left and checked for oncoming traffic and as nothing was coming he signaled defendant with his horn 'for a pass and continued to try to make that pass'; that he turned completely over to the northerly half of the highway approximately at the same time he gave his signal; that as he was about to pass defendant's car pulled to the left and that when defendant's car turned left to go across the highway the front end of his car was approximately even with the rear end of defendant's car; that a narrow shoulder, a high line post, and a tree prevented him from turning further to his left; that the right hand side of his car struck defendant on the left side, and that:

'After the Krall car started to turn left there was so little time elapsed up to the impact that there was no time to apply brakes. I did not actually get my brakes on. I remember nothing after the impact except short periods of time in the hospital until approximately 3 weeks later.'

Plaintiff's only other witness to the collision testified that as plaintiff passed the store (where plaintiff first saw defendant), he was traveling 45 to 50 miles per hour; that he did not know whether defendant's flasher signal was on or not, nor could he recall as to whether he heard a horn blow just before the accident.

Defendant, a 37-year old married man, was engaged in farming at Bainbridge Center. He testified that he stopped at the store because of a heavy rain and remained three for 15 or 20 minutes; that he then went out to his car, which was parked in front of the store facing in a westerly direction, and made a U-turn so he could proceed eastward to his parents' home; that after he traveled about 300 feet east he gave the signal that he was turning left into his parents' driveway, at which time he was approximately 100 feet from the driveway; that at this time he also looked through his rear view mirror and saw a vehicle on the left-hand or north side of the road, which would normally be the westbound lane, and that said vehicle was beyond the crest of the hill; that after making the observation he proceeded eastward about 50 feet and had almost completed all of his turn when plaintiff's car, traveling at a high rate of speed, struck the left rear fender and wheel of his car; that the impact pushed his car eastward and into the ditch on the north side of the road; that after striking his car plaintiff continued on for 75 feet and struck a 20-year old apple tree, with a trunk diameter of about 14 inches, and that 'the tree was pushed over completely on its side. The roots on the side facing the direction which the car hit it, the direction it had hit, were pulled from the ground.'

Plaintiff testified that he did not remember passing any automobile, but a witness called by defendant testified that plaintiff passed him shortly before the accident and that plaintiff was traveling 'at least 60, if not more.'

The evidence in this case justified the court submitting the question to the jury and the jury's verdict was not contrary to the great weight of the evidence.

At the conclusion of the court's instruction to the jury the court asked the attorneys the following question and received the following answers:

'Is there anything further, gentlemen?

'Mr....