41 Mich. App. 739 | Mich. Ct. App. | 1972
This cause arises from an
The accident in question occurred at approximately 10 a.m. At the time of the accident, the weather was clear and the pavement dry. Plaintiff was driving north on Dettman Road, a two-lane road running north and south, and had stopped at a stop sign at the intersection of Dettman Road and Page Avenue. The stop sign required traffic on Dettman to stop before negotiating Page Avenue, a four-lane through street running east and west. Defendant Jimmie Harold Falls, operator of a vehicle owned by defendant Manly Falls, was traveling in a westerly direction in the northernmost lane of Page Avenue, approaching the Dettman intersection from the east. The Collision involving plaintiffs and defendants’ vehicles occurred in the center of the two westbound lanes of Page Avenue.
A witness to the accident, Walter Bartlett, who had been traveling south on Dettman Road, testified that just prior to the accident he stopped at the stop sign at the north edge of Page Avenue. He saw plaintiff sitting on the other side of the intersection facing in the opposite direction. Bartlett testified that he saw defendants’ vehicle coming around a curve 900 feet east of the intersection and determined that it was safe for him to make a left turn in front of defendants’ approaching vehi
Plaintiff, who was 65 years of age, was accompanied by his grandson, who was in the right front passenger seat at the time of the accident. The grandson was killed as a result of the ensuing collision. Plaintiff testified that upon stopping at the intersection of Dettman and Page, he looked in both directions on Page and, although he could see more than 700 feet to the east of the intersection, he saw no traffic. From the time that he started out into the intersection, he did not stop and was traveling at approximately 6 to 10 mph. He stated that he was watching Bartlett’s vehicle so as to make certain that he did not hook Bartlett’s rear. Plaintiff reached the center of Page Avenue but could remember nothing more of the accident.
Defendant, Jimmie Falls, testified that he was
An investigating officer testified that he could find no skid marks or tire marks from defendants’ vehicle east of the point of impact. That testimony was verified by that of another officer.
Plaintiff claims first that the trial court committed error in failing to instruct the jury concerning the theory of last clear chance, thereby refusing to allow the jury to consider plaintiffs claim as to that doctrine. In this regard, the trial court, in its opinion denying plaintiffs motion for new trial, Stated:
"The Court took the question of last clear chance from the jury because, I contend, the record will show that if the jury found the defendant [plaintiff?] to be negligent that it continued up to the time of the accident and did not cease.”
The record in the instant case supports the action of the trial court in refusing to instruct the jury as to the last clear chance doctrine. It was uncontroverted that plaintiff did not stop his vehicle after allowing Bartlett’s car to make its left
Second, plaintiff contends that the trial court committed reversible, error when it incorrectly charged the jury that "speed in and of itself is not evidence of willful and wanton misconduct”. The record reveals that the trial court, in its initial instructions, correctly stated that "mere excessive speed by itself does not constitute willful and wanton misconduct in the operation of an automobile”. Bielawski v Nicks, 290 Mich 401 (1939). Further, the court cured the error complained of by immediately repudiating the erroneous charge. The instruction, as given, does not therefore compel reversal.
Finally, plaintiff asserts that the verdict of the jury was contrary to the great weight of the evidence. Although this issue was properly raised by motion for new trial, and has been fully considered by this Court, we find the same to be without merit.
Affirmed. Costs to defendants.