Rollin v. Van Tine

I am not in accord with Mr. Justice WIEST'S opinion. The record shows that there were three eyewitnesses to the accident who testified at the trial. All witnesses agree that immediately before the cars collided, each car was on its proper side of the highway. Plaintiff testified that at all times he was driving on the proper side of the highway and at least 18 inches from the center. Leo Walker, a witness riding in the front seat with plaintiff, testified that plaintiff was upon his proper side of the road; that the car did not swerve before the collision; and that plaintiff's car was a distance of from 12 to 20 inches from the center line of the highway.

Defendant testified that as the cars were passing each other, the rear end of plaintiff's car "slued or skidded" across the center line of the highway and caught the front fender of defendant's car. Defendant also testified that after the accident he traced the tracks of plaintiff's car through the slush and found that the marks were over the center of the highway. The evidence as to the marks in the slush was corroborated by the testimony of Miss Larsen who arrived upon the scene after the accident occurred. However, plaintiff's witness testified that the road was wet, but with no slush upon the highway as the snow melted as soon as it reached the pavement. The principal issue involved in this case presents a question of fact. The trial court had the privilege of seeing and hearing the witnesses testify. He found that there "was no evidence whatever of negligence on the part of the plaintiff" and awarded plaintiff damages.

The only conclusion that can be arrived at from the court's findings is that plaintiff was free from contributory negligence; and that the collision occurred by reason of the negligence of defendant. In Leonard v. Hey, 269 Mich. 491 (37 N.C.C.A. 111), we held that we do not substitute our judgment on questions of fact unless the evidence clearly preponderates in the opposite direction.

See, also, Paton v. Stealy, 272 Mich. 57; Baumgartner v. St.Armour, 276 Mich. 650.

To say that the alleged negligence of the defendant was not established does violence to the policy of this court as enunciated in Leonard v. Hey, supra, and to hold otherwise would be a substitution of our judgment for that of the trial judge.

The judgment is affirmed. Plaintiff may recover costs.

BUTZEL, BUSHNELL, POTTER, and McALLISTER, JJ., concurred with SHARPE, J.