This appeal of defendant Lender-ink involves the same accident as that in
Ortega
v.
Veenstra
(1969),
The cases against the Veenstras and Lenderink were tried together and resulted in a jury verdict of no cause for action as to all 3 defendants. On plaintiff’s appeal to the Court of Appeals it affirmed as to defendants Yeenstra but reversed and remanded for new trial against defendant Lenderink.- This appeal is here on leave granted to him.
The Court of Appeals reversal was based on the theory that the trial court had committed reversible error in refusing plaintiff’s request to charge the jury that Lenderink was guilty of negligence as a matter of law in parking his truck where he did and to leave to the jury only the questions of proximate cause and contributory negligence.
At trial plaintiff originally filed written requests to charge, including the following, denominated “plaintiff’s proposed instruction No. 9”:
“It is the position of the plaintiffs in this action that defendant Lenderink was negligent in parking his truck so close to the north crosswalk of the Clancy-Fairbanks intersection as to obstruct the vision of drivers of automobiles who were approach *221 ing the intersection from the north. One of the laws of Michigan controlling the nse of automobiles provides that,
“ No person shall park a vehicle * * # within 20 feet of a crosswalk.’
“This means that no one is permitted to park a car or a truck within 20 feet of the crosswalk at an intersection.
“If you should find that the delivery truck of the Clancy Food Market was parked by Mr. Lenderink within 20 feet of the north crosswalk of the Clancy-Fairbanks intersection at the time Robert Ortega was struck by the Veenstra car, then that would be a violation of the statute which I just read you, and defendant Lenderink would be guilty of negligence as a matter of law.”
This requested charge was given by the court. Before the court instructed the jury, however, plaintiff’s attorney informed the court that he was no longer satisfied with his request No. 9, which in effect leaves it to the jury to determine the place of parking and instructing only that if it should find it to be within 20 feet of the crosswalk the defendant Lenderink would be guilty of negligence as a matter of law. Counsel now requested, orally, that the court, instead, instruct the jury that Len-derink had parked his truck within those 20 feet and, therefore, was guilty of negligence as a matter of law. This the trial judge refused to do. The Court of Appeals says he should have done so.
Plaintiff seeks to establish his claimed .right to a directed finding of guilty of negligence against Lenderink on his own testimony, on cross-examination under the statute, which was, substantially, that he had never measured it, but that according to his best judgment the front of his truck, when parked, was between 17 and 18 feet north of the *222 crosswalk. Plaintiff also points to the opening statement, made before proofs, by defendant Len-derink’s attorney about what the proofs would show, including the assertion that Lenderink’s best estimate of the distance between the crosswalk and the front of his parked truck was approximately 18 feet. In addition, plaintiff presented testimony of 3 other witnesses to the effect that the front of the truck had been in line with the fire plug, which other proofs showed to have been 16 inches north from the crosswalk in the direction of the parked truck.
A woman who lived in an apartment at the corner testified that she had been looking out of a window and saw the boy run out into the street and the ensuing accident. She also testified that she would say that the truck was parked 15 to 20 feet beyond the fire hydrant, which, defendant argues, with the hydrant being 16 inches north of the crosswalk, would amount to her testimony placing the front of the truck from 16 feet, 4 inches, to 21 feet, 4 inches, north of the crosswalk. Plaintiff points to inconsistencies in her testimony but nothing to show interest on her part in the outcome of the case.
Plaintiff has come, on appeal here, to the point of claiming that defendant Lenderink’s own testimony and the opening statements of his counsel about the distance constitute a judicial admission which is binding on him. In this connection he cites
Connor
v.
Lahe Shore & M. S. R. Co.
(1911),
“We have here no formal admission of a fact, as in
Connor,
‘made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial,’ which, as stated in
Connor,
would ‘stand upon a different footing from that held by mere testimony.’ There was no judicial admission of fact requiring that we discard the usual rule applicable to defendant Moelke’s motion for judgment
non obstante veredicto
that the testimony must be viewed in the light most favorable to plaintiff. That rule is followed even when there are inconsistencies or contradictory statements in the téstimony of plaintiff or her witnesses.
Yampolsky
v.
Smith
(1948),
In the instant case plaintiff was not prevented by the above admission of defendant and his counsel from presenting testimony of other witnesses as to the question of the distance involved and, in fact, did present that of 3 other witnesses. This is, then, no case, under the cited decisions or any others, for imposing the rule of a binding judicial admission against defendant Lenderink. To borrow from Toser, Lenderink is entitled to the benefit of testimony in support of a verdict in his favor despite his expression of an opinion inconsistent therewith. Furthermore, with the judicial admission question thus eliminated, we are left the situation of conflict *224 ing evidence on the subject and, as said in Toser, and uniformly in onr decisions, in consideration of plaintiff’s motion for what amounts to a directed verdict on this matter, defendant Lenderink is entitled to have the testimony viewed in the light most favorable to him. So viewed, although plaintiff was entitled to the charge No. 9 which he first requested and which the court gave, he was not entitled to his afterthought, a direction to the jury to find a certain way as to a question of fact on Avhich there was conflicting testimony.
Reversed and remanded to circuit court for entry of judgment in accord with the verdict. Costs to defendant.