292 N.W. 367 | Mich. | 1940
Lead Opinion
We granted leave to appeal in the nature of mandamus to review the refusal of the trial court to grant defendant's motion for judgment of no cause of action. A motion for directed verdict was timely made at the close of plaintiff's proofs, and the case was submitted to the jury under the Empson act (3 Comp. Laws 1929, § 14531 et seq. [Stat. Ann. § 27.1461et seq.]). The jury were unable to agree. *457
The motion for judgment upon disagreement of the jury is authorized by 3 Comp. Laws 1929, § 14535 (Stat. Ann. § 27.1471), which provides:
"SECTION 1. Hereafter in all civil actions at law, in courts of record, other than probate courts, wherein issues of fact are submitted to a jury, and the jury disagrees and is discharged by the court, it shall be proper for either party on motion and notice to the opposite party to request the entry of judgment upon the evidence and proofs taken, within sixty days after the discharge of such jury, and if the court shall decide as a matter of law that a verdict should have been directed in the case of either party, the court shall enter its order upon the record ordering judgment in accordance with the decision of the court, and the party against whom such judgment is entered shall have an exception to such action of the court as a matter of course."
Defendant claims an absolute right to a judgment in its favor as a matter of law; plaintiff claims that it was within the discretion of the trial judge to order the case to stand for trial before another jury and that mandamus should not issue unless there is a flagrant abuse of discretion, citingJaeger v. Mitchell,
The facts are not in dispute, the argument centering about the conclusions to be drawn therefrom. James Benford, plaintiff's intestate, was fatally injured by being hit by a truck owned by defendant. At the time of the injury he was about 59 years of age, and was suffering from myocarditis, an inflammatory condition of the heart muscles, which ailment caused him sudden, terrific pain. As he advanced in years, the condition grew worse. Defendant owned and operated a one and one-half ton truck which was carrying empty milk cans at the time of the accident. It had an open type stake body with a covered cab, the cab being 8 or 10 inches narrower than the open part of the truck body. There were ordinary glass windows in the doors of the cab. Early in the morning of July 10, 1935, defendant's employee drove the truck along Fifth street in the city of Niles, accompanied by a boy about 16 years of age. The atmosphere was clear and the pavement was dry. The truck was proceeding straight along the street at the rate of 12 or 15 miles per hour, and at no time was it closer than 5 to 7 feet from the right curb. It did not change its course or swerve towards the right curb. Both the driver and his companion testified that they were looking straight ahead and could see somewhat to the right side of the car, and that they saw no one standing at the curb or on the street. They could see ahead probably a block and a half. When the truck reached a point about opposite a ramp in the side of the road, two hands "came up against the window and smashed the glass," which fell into the lap of the boy sitting beside the driver. The impact did not break the entire window but "took a chunk clear out * * * just a round hole." The truck came to an immediate stop, but was then driven from *459 the center of the road about 75 feet ahead and out of the street. The driver immediately went back to look after decedent. He was lying on the street "about three feet from the curb and his feet out toward the pavement." No part of the truck ran over him, nor was he struck by the right front of the truck. The front part of the truck up to the cab window seemed to have passed him before the impact. As a result, plaintiff's decedent suffered a fracture of the left clavicle and of two ribs on the left side, with the consequence that the left lung collapsed, pulling to the left his heart which was already in bad condition, and death followed in three days. There was no testimony whatever to tell us just what decedent did prior to the impact.
It is claimed that there was no evidence of negligence on the part of the defendant or its driver. The trial court refused to enter judgment for defendant on the ground that if the driver had looked ahead, he would have seen plaintiff, and that he was negligent not to avoid striking deceased, citingWilkins v. Bradford,
In reviewing the case, we consider the testimony in the light most favorable to plaintiff, the party against whom it is claimed the judgment should not have been entered.Pomeroy v. Dykema,
The trial court relied largely on Wilkins v. Bradford, supra, where we held that the circumstances proved were sufficient to warrant a jury finding of negligence. On a cloudy night a youngster of eight years was sent to deliver a pail of milk to a neighbor. He was found lying on the highway dead. Defendant's car was examined about a mile up the road where it was involved in another accident. The proofs showed that there was milk on the radiator and windshield, hair on the car of the color and texture of that of the boy, and there was a dent in the radiator about the size of the boy's head, in which dent was found hair similar to that of the boy. Mr. Justice FEAD, in connection with these facts, said:
"If he had kept a proper lookout, had his car under control and could have stopped within the range of his vision, he necessarily would have seen decedent and have stopped in time or driven around him. The alternative is the incredible hypothesis that defendant seasonably saw decedent and ran him down."
The distinction between the type of accident involved in theWilkins Case and that in the case at bar was pointed out inWarwick v. Blackney, supra, where the contact was with the left rear fender of *461 defendant's car, rather than a head-on collision. To quote from the opinion:
"As stated by the trial court, had 'the defendant's car struck plaintiff head-on, a different situation might have presented itself,' but the contact, according to the testimony, was with the front of the left rear fender and thereafter some part of the car tore plaintiff's right arm."
In the Warwick Case we affirmed the trial judge who ruled that negligence had not been proved.
In Manley v. Potts, supra, plaintiff was struck by a taxicab. The cab was stopped immediately after the impact, and plaintiff was found lying toward the west of the car about 20 feet south of the place where the impact probably occurred. There was no evidence of the speed or manner in which the cab was operated. We denied recovery, holding that:
"The only facts that could be legitimately found from the meager evidence presented would be that an accident occurred and that plaintiff was injured. The record is barren of any evidence even remotely tending to establish defendant's negligence, if any. Although the fact that an accident happened may be considered together with other surrounding circumstances in determining if there was in fact negligence (McLeod v. SavoyHotel Co.,
Because proof of the driver's negligence was wanting, we need not consider the question of plaintiff's contributory negligence. Warwick v. Blackney, supra. *462
A writ of mandamus should issue directing the entry of a judgment for defendant. It is so ordered. Defendant will recover costs.
SHARPE, CHANDLER, NORTH, and WIEST, JJ., concurred with BUTZEL, J.
Dissenting Opinion
In the absence of eyewitnesses to the accident, deceased must be presumed to have been free from contributory negligence. The only question before us is whether the case should have been submitted to the jury on the issue of the negligence of defendant's driver.
Defendant's driver was obliged to keep a lookout for pedestrians and to see what should have been seen. SeeZuidema v. Bekkering,
There is no explanation for the failure of defendant's driver to see decedent at the time of the accident. If defendant's driver had been maintaining a lookout, he would have seen him. If he did not see the decedent, he was not looking, for the deceased must have been within the range of his lookout. The jury, governed by the presumption that decedent was free from negligence, had the right to draw inferences from the circumstances as to the negligence of defendant's driver. In a similar case, Wilkins v. Bradford,
"There was no direct evidence of negligence. But negligence may be proved by circumstantial evidence. Burghardt v. DetroitUnited Railway,
"As there were no eyewitnesses to the injury, the law raises the presumption that decedent was in the exercise of due care. Contributory negligence was not a question for the jury. The driver of an automobile has the duty, not only to keep a lookout ahead and to have his car under control, but also to drive at such speed that he can stop within the range of his vision. The latter is a rule of safety. Ruth v. Vroom,
"Assuming, from the verdict, that defendant's car struck decedent, and from the presumption of law, that decedent was in the exercise of due care, it is a legitimate inference, if not an inevitable conclusion, that defendant was guilty of one or more of the acts of negligence charged against him. If he had kept a proper lookout, had his car under control and could have stopped within the range of his vision, he necessarily would have seen decedent and have stopped in time or driven around him. The alternative is the incredible hypothesis that defendant seasonably saw decedent and ran him down. The injury could not have occurred with both defendant and decedent exercising due care. Defendant's negligence was for the jury, and its finding that he was negligent was not against the great weight of evidence."
The trial court was not in error in submitting the case to the jury on the question of the negligence of defendant's driver.
The order of the trial court denying defendant's motion to enter judgment of no cause of action should be affirmed and the cause remanded for a new trial, with costs to plaintiff.
BUSHNELL, C.J., and POTTER, J., concurred with McALLISTER, J. *464