275 N.W. 652 | Mich. | 1937
About 3 o'clock a. m. of July 22, 1934, on a curve, a car, driven by Frank Gardner, 15 years old, collided with a car, owned and driven by Dr. C.H. Boyer and in which plaintiff was riding as a passenger for hire. Boyer died the next day.
Plaintiff and Gardner each filed claim for $50,000 damages against Boyer's estate. The claim of negligence is that Boyer was driving on the left, or wrong, side of the road and caused the collision. Defendant had verdict of a jury and judgment.
Plaintiff was asked the question: "What side of US-112 were you when injured?" On objection the court excluded an answer as a matter equally within the knowledge of the deceased.*
The exclusion was error. Drivers do not always know or realize their precise position on the highway, especially at night. There was no evidence that Boyer had knowledge of his position with reference to the center of the road at the time of the *620
collision. The test is stated in Noonan v. Volek,
Defendant contends the error is not reversible because Gardner had testified positively that Boyer was on the wrong side of the road and his testimony was undisputed,Chamberlain v. Eddy,
The other points have little merit and need no discussion.
Reversed, with new trial and costs.
NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.