Pulford v. Mouw , 279 Mich. 376 ( 1937 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiff's decedent came to his death four days after the automobile that he was driving south on Campbell road in the city of Royal Oak was struck by a car being driven west on Fourth street by defendant Joseph Mouw.

The center of Campbell road marks the easterly limits of the city; a stop sign on the northerly side of Fourth street about 150 feet east of the intersection warns those approaching this crossing from the east that Campbell road is a through highway. The view across the northeast corner of these streets is unobstructed for at least 100 feet.

A disinterested witness, Cook, was being driven by his wife in an automobile 5 or 10 rods in the rear of decedent's car and was proceeding in the same direction. He estimated the speed of the Ford (decedent's auto) at 20 to 25 miles per hour and that of the Oldsmobile (defendant's car) at 30 to 35 miles per hour. Cook first saw the Oldsmobile when it was about 100 feet from the intersection and testified that there was not much change in its speed until the brakes were applied on defendant's car "after it got on Campbell road." He stated that the collision occurred about in the center of the intersection, and that:

"The cars struck broadside; the right-hand side of the Olds and the left-hand side of the Ford; they sideswiped. After they struck, the Ford went to the right and the Oldsmobile swung to the left. * * * The Ford came to a stop around 50 feet from the center of Campbell road. The Oldsmobile was not as far from the center of Campbell road as the Ford. It was about 40 feet from the center of Campbell road."

Testimony was offered by defendant Royal Oak Tool Machine Company, a Michigan corporation, that it did not own the Oldsmobile, but had taken title to the car as security for a personal loan to Mouw, he being in the employ of defendant corporation as their office manager. The court declined to admit this testimony, and the objection to the court's failure to consider the question of ownership was not briefed by defendants upon appeal and therefore will not be considered.Sebastian v. Sherwood, 270 Mich. 339. Defendants' brief says the record fails to show that defendant Mouw was driving the car with the knowledge and consent of the owner, the Royal Oak Tool Machine Company. The civil liability of the owner of a motor vehicle is established by 1 Comp. Laws 1929, § 4648. It is presumed that Mouw was driving the car with the knowledge and consent of the owner and no testimony was offered to rebut this presumption. City of St. Joseph, for the use and benefitof Fidelity Casualty Co., v. Grantham Motor Sales, 269 Mich. 260.

Defendants' counsel admitted in his opening statement that Mouw "did not stop on entering Campbell road," and added that this "is an accident resulting not alone from the failure of Mr. Mouw to stop back of that stop sign, but from the failure of Mr. Pulford having his car equipped with brakes so he could stop and from his failure to see and attempt to stop before the accident happened." Defendants' testimony was confined to the matters just stated.

The trial judge was asked to direct a verdict for the defendants on the ground that plaintiff's decedent was guilty of contributory negligence as a matter of law, but he declined to do so, and the jury returned a verdict for plaintiff in the sum of $7,500.

Plaintiff's decedent was riding alone and the only eyewitnesses were Mr. and Mrs. Cook, who testified for the plaintiff, and defendant Joseph Mouw, who did not take the stand.

The undisputed proof that defendant Mouw failed to stop before entering a through highway required the finding that he was guilty of negligence under the circumstances of this case.Hilliker v. Nelson, 269 Mich. 359.

The burden was upon plaintiff not only to show the negligence of the defendant, unless that negligence was conceded, but he was required to show also that his decedent was free from contributory negligence. There being eyewitnesses to the accident, there is no presumption that plaintiff's decedent was free from contributory negligence. Buchel v. Williams,273 Mich. 132, and Faustman v. Hewitt, 274 Mich. 458.

One is not negligent unless he fails to exercise that degree of reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstances in view of the probable danger of injury. Detroit Milwaukee R. Co. v.Van Steinburg, 17 Mich. 99, 118, and Mikulski v. Morgan,268 Mich. 314. Pulford was proceeding on a through street; he had the right to assume that Mouw would obey the statute which required him to come to a full stop before entering Campbell road. See 1 Comp. Laws 1929, § 4715; and Weil v. Longyear,263 Mich. 22.

The speed of the two vehicles as they approached the intersection, the testimony of Cook and his wife, the inhibition of the statute just cited, the place and character of the collision, the skid marks upon the pavement starting from the point of impact, the damage to the respective cars, and defendant Mouw's admitted negligence produce a state of facts upon which reasonable men may fairly arrive at different conclusions. The issue of fact thus presented makes the matter of decedent's contributory negligence a question for the jury.Detroit Milwaukee R. Co. v. Van Steinburg, supra; Filter v.Mohr, 275 Mich. 230, and Marciniak v. Sundeen, 278 Mich. 407. See, also, Thompson v. Michigan Cab Co., ante.

Appellants say that the court erred in failing to charge the jury, in the language of their requests to charge, regarding the condition of the brakes on decedent's car and with respect to defendant Mouw's negligence. The matter of the adequacy of brakes was fully and completely covered by the charge of the court. Defendant Mouw's counsel admitted that his client was negligent in that he failed to stop before entering a through highway.

The court did not commit prejudicial error in stating in the presence of the jury that "there is no proof here that lack of brakes was the proximate cause." The language of the court was a true statement of the condition of the proofs and defendants were not prejudiced thereby. Furthermore no objection was made to the statement.

Appellants allege error, because of the court's exclusion of witness Sherrill's opinion testimony. The quotation from the testimony as given in appellants' brief in support of this claim is not in accord with the record. The appellants' brief states:

"Q. Now, when you examined this Ford, what was the condition of the brakes?

"A. Well, the brake pedal would go down —

"Mr. Cary: I am going to object to that as a conclusion. I am going to ask the witness to state what he found.

"The Court: Objection sustained."

The record shows:

"Q. Now, when you examined this Ford, what was the condition of the brakes?

"A. Well, the brake pedal would go down —

"Mr. Cary: I am going to object to that as a conclusion. I am going to ask the witness to state what he found.

"Q. Just state what you found there?"

The record does not contain a ruling of the court on the objection, but on the contrary, it shows that counsel reframed the question to conform to the objection. We are bound by the record and not by inaccurate quotations.

"Counsel's contradiction of the record is of no force."Marquette, H. O. R. Co. v. Marcott (syllabus), 41 Mich. 433.

Appellants moved for a new trial and argue that the verdict of the jury is against the overwhelming weight of the evidence.

"If there was substantial evidence tending to support the verdict, it cannot be set aside, even though upon the record we might be in doubt as to the ultimate facts." Hillman Twp. Board v. Empire Mutual Fire Ins. Co., 253 Mich. 394.

As we recently said in Patterson v. Thatcher, 273 Mich. 597:

"We confine ourselves to a comprehensive review of all of the evidence, having in mind the burden of proof and according due allowance to the advantage had by the jury in facing the witnesses, and from the record determine whether or not the verdict is so plainly a miscarriage of justice as to call for a new trial. See, In re McIntyre'sEstate, 160 Mich. 117; People v. Spencer, 199 Mich. 395, 400."

The record has been examined and we find there is substantial evidence tending to support the verdict. The judgment is affirmed, with costs to appellee.

FEAD, C.J., and WIEST, BUTZEL, SHARPE, POTTER, and CHANDLER, JJ., concurred.

NORTH, J., concurred in the result.