Wilson v. Johnson , 195 Mich. 94 ( 1917 )

Kuhn, C. J.

(after stating the facts). The first question counsel for appellant request us to consider is their claim that the court should have directed a verdict for the defendant because of the contributory negligence of the deceased. This is based on the testimony of the defendant and his wife that the plaintiff’s decedent, who was marshal of the city and had acted as traffic manager at the intersection square, directed the defendant in the course he took. The testimony is clear, however, that at the time of the accident the decedent was not acting as a traffic officer, and that he made no motion with his hands because these were in his pockets. The testimony of the defendant and his wife as to the nod of the head is contradicted by other evidence in the case, and clearly this question, under all the evidence, was for the jury and is not so free from doubt that it can be decided as a matter of law.

The only excuse given by the defendant for driving to the left of the intersection in violation of law was his claim that the wagon load of cement stood in the east side of the square. The claimed signal by the deceased was no excuse for his cutting the corner, because he was already in the act of doing it and on the wrong side of the highway when he claims the signal was given. As has been said, there is a hopeless conflict in the testimony of the witnesses as to the exact position of the wagon. Error is assigned because of the refusal of the court to charge that it was the defendant’s duty to pass to the left of this wagon. It is true that, ordinarily, it is the duty of one vehicle to pass to the left of another going in the same direction, but to do so and cut the corner would be a violation of another statute. There was ample room for two vehicles to pass on the right side of the street. The law is specific as to what shall be done under such circumstances. The driver of the overtaking vehicle shall express his desire to pass, and the vehicle overtaken shall turn to the right and give the other an opportunity to pass on the left. 1 Comp. Laws 1915, § 4815. It does not'appear that the defendant made any effort to comply with the statute. The adoption of the rule contended for by the defendant would result, especially in cities where traffic is heavy, necessitating delays at street intersections, in automobiles continually cutting the corners.

Certain requests to charge were preferred as to the negligence of the defendant and the contributory negligence of the plaintiff’s decedent. While they were not given in the exact language of the requests, the court in his general charge dwelled at length on the law of contributory negligence and, in our opinion, gave as favorable a charge with relation thereto as the defendant was entitled to.

In part, he said:

“The right to the use of the street lies in both parties, the pedestrian and the operator of the car; and their duty to exercise due care is reciprocal, whatever the character of the vehicle may be that was on the street, or the pedestrian on the street. The plaintiff’s intestate when attempting to cross this highway had a_ right to assume that all other persons using the highway, including defendant, would exercise due°care and that they would obey the law, and it was the duty of both the defendant and the decedent to exercise that care and caution that ordinarily careful and prudent persons would when moving along on this street. Let’s go back just a moment. It was the duty of both the defendant and the decedent to exercise that degree of care that the ordinarily careful and prudent person would when moving along on this street, for the purpose of determining whether any danger was liable to come to either by reason of their being on the crossing. And they both should exercise care according to the circumstances surrounding them, and are bound to the alert and watchful performance of the duty due from all travelers on all highways, and not walk nor drive blindly into positions that will endanger themselves or others. Of course, gentlemen, this does not go beyond the rule I have given you of ordinary care and prudence.

“If you find that the defendant in pursuing his course, or in changing his course, veered to the northwest by the direction of the deceased, conveyed to him by the nod of his head as claimed by the defendant, and the defendant then understanding that Mr. Wilson was the marshal of the city and that he had acted as a traffic officer on this particular intersection, then the defendant was not guilty of negligence in taking the course he took.”

Others embodied a request to charge:

“If the defendant made a mistake in judgment in such a great and sudden emergency as is disclosed in this case, what the defendant did could not be construed as negligence or carelessness.”

The question of whether or not the emergency was caused by the negligence of the defendant was not incorporated in this request, and this should have been done if it was desired to have this question submitted tq the jury.

The court submitted the case to the jury upon the theory that the defendant may have been operating his car at the time of the accident at a greater rate of speed than 10 miles an hour. Defendant’s counsel requested the court to charge the jury that there was no testimony in the case upon which such a theory could be based. Witness Newberry testified that the car was traveling 10 or 12 miles an hour. The defendant testified that with his car running 6 miles an hour he could have stopped it within 7 feet of the point when he realized deceased was in danger, that his brakes were in perfect working order, that his clutch was out and the car coasting as he struck deceased, that he never let the clutch in again after the collision, that he applied the brake at once, and did not release it again until after deceased had fallen. There is testimony to show that,, even though defendant applied the brakes as claimed, the car’s momentum after it hit the deceased carried it, most of the time shoving him before it on the pavement, a distance of approximately 50 feet. This, in our opinion, was proof sufficient to warrant the submission of the question with relation to the rate of speed to the jury.

It is also claimed that the court erred in overruling defendant’s motion for a new trial. It is said that the motion should have been granted because of the showing made as to newly discovered evidence, supported by tne affidavits of three persons who claimed to have seen the deceased nod to the defendant, as testified to by the defendant and his wife. In the recent case of Branch v. Klatt, 173 Mich. 31, at page 40 (138 N. W. 263, 266), this court said:

“Whether the newly discovered evidence is of such a character and a different conclusion ought to follow, or is probable on a retrial, is a question primarily and peculiarly addressed to the good judgment and discretion of the trial judge who heard and saw the witnesses and is familiar with the visual conditions of the case. That discretion will not, as a rule, be disturbed except in case of manifest abuse.” ■

The trial judge said:

“The court is not persuaded that the showing regarding claimed newly discovered evidence is sufficient or is'such as to justify the granting of a new trial.”

We are not satisfied that the trial judge abused his discretion in denying this motion, as in our opinion it was not made to appear that the evidence was not cumulative and it would produce a different result on a new trial. See Guerold v. Holtz, 103 Mich. 118 (61 N. W. 278); White v. Peabody, 106 Mich. 144 (64 N. W. 41); Morin v. Robarge, 132 Mich. 337 (93 N. W. 886.); Cummings v. Baker, 141 Mich. 536 (104 N. W. 979); Storch v. Rose, 152 Mich. 521 (116 N. W. 402); National Surety Co. v. Grant, 177 Mich. 348 (143 N. W. 5).

The judgment is affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.