296 N.W. 321 | Mich. | 1941
Lead Opinion
While on the issue of contributory negligence this appeal presents a close question as to whether the jury's verdict in favor of plaintiff was against the great weight of evidence, I am not in accord with reversal on that ground. But because this is a borderline case on a controlling factual issue, I concur with the result reached by Mr. Justice BOYLES on the ground that admission of the testimony of plaintiff's husband was prejudicial to defendant and under the circumstances calls for reversal. Costs to appellant.
SHARPE, C.J., and BUSHNELL, CHANDLER, McALLISTER, WIEST, and BUTZEL, JJ., concurred with NORTH, J. *449
Dissenting Opinion
This is an action for damages arising out of an automobile accident at a highway intersection. In the forenoon of June 8, 1939, plaintiff was driving an automobile east on Norway avenue in the residential section of Kalamazoo. Defendant was driving south on North Church street. Neither highway is a stop street. The automobiles collided at a point slightly south and west of the center of the intersection. Defendant's car struck the left front wheel and fender of plaintiff's car. Trial was had before a jury resulting in a verdict of $2,833.33 for plaintiff. Defendant's motion for judgment non obstante veredicto was denied, and, after judgment was entered, defendant moved for a new trial. The motion was denied and defendant appeals.
Defendant makes the following claims as grounds for reversal: That plaintiff was guilty of contributory negligence as a matter of law; that plaintiff failed to prove due care and freedom from contributory negligence; that the verdict was against the weight of the evidence as to contributory negligence; that the verdict was excessive; and that the court erred in several respects in admitting testimony.
(a) Was plaintiff guilty of contributory negligence as a matter of law? (b) If not, was the verdict contrary to the weight of the evidence?
Plaintiff testified that the accident occurred on a clear day; she was familiar with the intersection; there was a grocery store at the northwest corner of the intersection, flush with both sidewalks; there was a truck parked south of the store on Norway avenue; plaintiff's view up North Church street was obstructed by the store and truck until she reached the east line of the truck and the store front which was about 40 feet from the center line of North Church street; she looked to the left as she went by *445 the store and truck; she first saw defendant's automobile when it was about 150 feet from the intersection; she observed defendant slowing down for about 50 feet and reducing his speed by about 10 miles per hour, and started on across the intersection; her speed was 12 to 15 miles per hour; she looked to the right, no car was approaching from that direction; she next saw defendant's car on her left about six feet from the point of impact; the wheels of his automobile were straddling the center line.
Defendant was cross-examined by plaintiff's counsel as a part of plaintiff's proofs. The record does not show whether he was called as an adverse party for cross-examination under the statute.* He testified he was going about 25 miles an hour as he approached the intersection; that when he was 35 feet north of the intersection of Norway avenue he looked to the right and didn't see anything; that he was about six feet from plaintiff's car when he first saw it; that he tried to turn to the left to avoid striking; that he hit the left front wheel and fender of her car; that after the collision he turned left; that the only observation he made to the right was when he was at a point 35 feet north of the center; that the store and parked truck constituted an obstruction to his seeing part of Norway avenue as he came down North Church street; that he first saw plaintiff's car when he was about six feet north of the center and at that time plaintiff's car was about three feet west and south of the center; he attempted to avoid collision by turning to the left; his left front wheel was east of the center line of North Church street when the collision occurred. *446
A witness for plaintiff, who saw the accident, saw both cars approaching the intersection, testified defendant was going a little faster than plaintiff; didn't notice that plaintiff decreased the speed of her car; knew there was going to be an accident. Another witness for plaintiff testified plaintiff was driving between 25 and 30 miles an hour when she went by the back of the store, 50 or 60 feet west of the front, and that plaintiff was not slowing down.
Defendant's wife, who was with him in his car, testified on his behalf that they approached the intersection at approximately 25 miles an hour; that she personally made observation toward the west along Norway avenue when they were about 15 feet from the crosswalk; that she did not observe any traffic on Norway; that as they proceeded into the intersection, she again looked west and observed plaintiff's car about six feet away; that she didn't see plaintiff's car long enough to state whether plaintiff slowed down or took any precautions.
The jury evidently accepted plaintiff's version that she observed defendant's car for a distance of about 50 feet slowing down 10 miles an hour and, therefore, considered it safe to proceed. See Burton v. Yellow Checker Cab TransferCo.,
The husband of plaintiff was permitted to testify to a telephone conversation between himself and defendant a few minutes after the accident. The sole purpose in calling plaintiff's husband as a witness was to show this conversation. He testified that the defendant called him and said:
"That he was the fellow that ran into Mrs. Sexton, and he notified his representative to get in touch with me at the hospital right away and make a settlement. * * *
"I told him that I wouldn't consider a settlement then."
Defendant's counsel moved that this testimony be stricken and the jury instructed to disregard it, which motion was denied. The jury were not instructed in regard to it. Defendant claims the purpose *448
of this testimony was (1) to inject into the case the impression that defendant was insured, by having his "representative" make a settlement; and (2) to show an offer of compromise or settlement, thereby indicating an admission of liability. Defendant claims that its admission was error when coupled with questions asked jurors by the court in regard to automobile insurance on the voir dire examination. Such questions, if any, are not disclosed by the record. We are not impressed with the claim that the mere use of the word "representative" was improper. It was, however, error to admit testimony of an offer of settlement for the purpose of showing an admission of liability. Crane v. Ross,
We have examined defendant's requests to charge and find that they were substantially covered. The other errors complained of are not likely to occur on a retrial.
Reversed and new trial granted, with costs to defendant.
