Osmalowski v. Deyman ( 1930 )

On January 4, 1928, while the plaintiff was driving an automobile owned by him along trunk line highway U.S. 31, about 7 miles south of Manistee, it collided with a truck belonging to the defendant and driven by his employee, Chris McIntyre. Plaintiff and a man in the car with him both testified that they saw a snow plow approaching; that, as it passed through a drift, much loose snow was thrown about; that plaintiff's car was moving slowly, and stopped when near this plow; that it was then off the pavement to the right, and that defendant's truck came around the side of the plow and crashed into it.

The defendant's witnesses testified that the truck was being driven in the path of the snowplow, and directly in line with it; that it had stopped, and that plaintiff's car ran into it, causing the collision.

The case was tried before the court without a jury. He found the facts to be as claimed by plaintiff, and entered judgment for the damage done to the car, which he found to be $625. Defendant seeks review by writ of error.

There was evidence to support the findings of the court, and, if they "are not against the clear weight of the evidence, the judgment should be affirmed." Weber v. Ford Motor Co.,245 Mich. 213, 216. We have read the record with care. We find nothing in it to challenge the truthfulness of any of the witnesses who testified. The trial judge saw them on the stand, and had an opportunity, not afforded us, to judge impartially, in view of the conditions present at the time of the collision. While the discussion of the testimony by defendant's attorney is appealing, it fails to convince us that we should say as a matter of law that the findings are "against the clear weight of the evidence."

The testimony discloses that plaintiff had purchased his car six weeks before the collision and paid $650 for it; that it was "in good repair, and in good running order;" that, as a result of the collision, "it was a complete wreck," and was given to a junk dealer. His damages were assessed by the trial court at $625. This allowance was not so excessive as to warrant interference on the part of this court.

The judgment is affirmed.

WIEST, C.J., and BUTZEL, CLARK, McDONALD, POTTER, NORTH, and FEAD, JJ., concurred.