Dasovich v. Longacre ( 1949 )

I am not in accord with the holding of Mr. Justice NORTH that Gertrude Dasovich was guilty of contributory negligence as a matter of law.

The trial court directed a verdict in favor of defendant at the conclusion of plaintiff's case. It is a fundamental rule that where the court has directed a verdict against plaintiff on the ground of contributory negligence as a matter of law the evidence must be viewed in the light most favorable to plaintiff. SeeLane v. B J Theatres, Inc., 314 Mich. 666.

It is also the rule that a party is not required to make his case by a single witness. See Bullen v. Wakefield CrushedStone Co., 235 Mich. 240. There was testimony that defendant's automobile rounded a curve, was going 50 miles an hour, swerved and went off the paved portion of the road on the north side.

Edward F. Gilstorff, a witness produced by plaintiff, testified:

"Longacre's car continued to go ahead of me and I saw it go around the next curve; that is the curve immediately prior to the Dasovich home. Longacre's car went off of the road when it tried to go around this bend. It went off on the north side. * * * I would say that the defendant's car when it went around the last curve before the Dasovich home was going around 40 to 50 miles an hour. * * * The next time I saw the defendant's car after it rounded that curve was when I got up to the same curve he was down by the Trombley house and he swayed across the road and went off on the road to one side. When I say the car swayed — the rear end of the car swayed. It was going back and forth. I would estimate the swaying about 6 or 8 inches. I saw this when I was coming around the curve. I would say the defendant put on his brakes because I saw the stoplight on. He was then off on the berm of the road on the north side of the road. I would say he was off the road from 18 to 24 inches off the highway with two wheels. After the car went off the highway on the right-hand side of the road I saw the car stop and pick up a girl. It stopped about 30 or 40 feet on the other side of the driveway, the old driveway that went into the Dasovich home. When this occurred, I was back by the Trombley house, east of the Trombley house, I pulled off the highway. I came down this highway about 30 to 35 miles an hour. When I got up there, got out of my car, I saw the defendant jump out of the car and run around the back of the car and pick up a little girl and put her in the back end of the car. I saw where the little girl was lying. She was there in a little gulley in the driveway."

Paul Dasovich, plaintiff and father of the injured girl, testified:

"When I arrived home about 6 on the day of the accident, I made an examination of my driveway and the berm immediately adjacent to the berm. I found tracks of an automobile wheel, tires. I saw one set of tracks. These tracks were both on the east and the west side of my driveway. The tracks were 37 inches off of the highway. I measured it. I would say these tracks ran about 1 1/2 to 2 inches in depth. The land or ground around the berm is sandy, no clay, just ordinary ground sand. These tracks started 39 feet east of the driveway and ended on the shoulder of the road 42 feet west. I measured those. There were additional marks on the pavement 26 feet southwest on the road. I haven't seen any other marks there. Those marks were tire marks on the shoulder stayed there for 2 or 3 months after that."

Alice Trombley, a witness for plaintiff, testified:

"Paul Dasovich and his wife and Gertrude live next door to me. * * * On the afternoon of April 5, 1943, I saw Gertrude Dasovich at approximately 4:10 p.m. coming from school. She was on the south side of the road on the berm. * * * There were also three boys with her. They were walking single file, Gertrude was ahead and the boys were behind her. * * * I saw an automobile around the curve at the time Gertrude was at the mail box. I saw the car out of the east window. It was rounding the curve. I noticed that the car was coming at a high rate of speed. * * *

"I would say that this car was going between 50 and 60 miles an hour. * * * I saw Gertrude at the mail box. She was at the mail box when the car started to come around the curve and I crossed over and went to the south window and watched Gertrude come across the road. * * *

"Q. Did Gertrude cross the highway, Mrs. Trombley? "A. I would say she got across. * * *

"Q. When Gertrude was hit, Mrs. Trombley, was the car on or off the highway?

"A. It had two wheels off the highway.

"Q. Two wheels, you mean one side of the car?

"A. Just one side of the car, yes.

"Q. About how far off the highway would you say the car was?

"A. About 6 feet.

"Q. Could you see that yourself?

"A. Yes, I could see that it was off the highway.

"Q. From your south window?

"A. Yes. * * *

"I would say when it went past my house it was going about 50 miles an hour, perhaps. It was off the highway at that time. I would estimate that the car was off of the highway before it hit Gertrude, about 100 feet and after the car hit Gertrude, I would say it went beyond the driveway about 100 feet."

Gertrude Dasovich, the injured girl, testified:

"I continued to walk on the south side of the road until I came to our mail box. The mail box is right across from our old driveway and this was the driveway into our house. * * * Before starting to cross I looked to see if any cars were coming and started to cross. I saw one coming around the bend. * * * I walked across the road. * * *

"Q. Do you remember how far you got across the highway, Gertrude?

"A. I got to the other side.

"Q. What is your best recollections, Gertrude? Do you remember how far you got across?

"A. To the cinders of the road."

There is testimony that when Gertrude started to cross the highway, she looked both ways and is presumed to have seen defendant's car coming around the curve, a distance of approximately 500 to 600 feet away. The principal question involved in this case is whether she is guilty of contributory negligence in walking across a 16-to-18-foot highway under these circumstances. She had a right to assume that defendant would drive his car on the paved portion of the highway. Before starting across the highway, she made an observation and evidently determined that she could cross the paved portion of the highway in safety. There is evidence from which a jury could find that she crossed the paved portion of the highway before being struck by defendant's car. The contributory negligence of Gertrude Dasovich presents a factual question and should have been submitted to the jury.

The judgment is reversed and a new trial granted, with costs to plaintiff.

BUSHNELL, BOYLES, REID, and CARR, JJ., concurred with SHARPE, C.J. DETHMERS, J., concurred in the result.