31 N.W.2d 832 | Mich. | 1948
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *655 This case results from an automobile accident occurring about 3:30 in the morning of February 22, 1942. Plaintiff and one Walter Glaser were riding in a truck owned and driven by defendant. Approximately four miles south of the village of Watersmeet in Gogebic county, the vehicle left the traveled portion of the highway, coming to a stop in the ditch on the left side of the road. Plaintiff sustained serious injuries, and instituted the present suit to recover damages therefor. The case was tried before a jury, which returned a verdict in plaintiff's favor in the sum of $5,314.50. Defendant's motion for a new trial was denied, and he has appealed.
The record does not set forth the pleadings, but it appears that the case was tried on behalf of plaintiff on the theory that the accident resulted from defendant's negligence in failing to keep a reasonable and proper outlook for plaintiff's safety. It is *656 conceded that plaintiff was asleep at the time of the accident, and no question is presented as to contributory negligence on his part. On behalf of plaintiff, testimony was offered on the trial to the effect that following the accident defendant made admissions indicating that he was asleep when the truck left the highway. Defendant denied the alleged statements, and claimed that he was fully awake at the time. It was also plaintiff's claim that he paid defendant the sum of two dollars for the privilege of riding in the truck. Defendant denied such payment, and the issue was submitted to the jury under instructions that plaintiff could not recover unless they found from the evidence that plaintiff had paid defendant as claimed. The jury determined the issue in plaintiff's favor, thus disposing of the claim that plaintiff was a guest passenger and that defendant was not liable in the absence of gross negligence or wilful and wanton misconduct on his part.*
It is the claim of defendant that the evidence in the case did not justify the finding of the jury that defendant was guilty of negligence constituting the proximate cause of the accident. At the conclusion of plaintiff's proofs a motion for a directed verdict was made by defendant and was denied by the trial court. It was renewed at the conclusion of the case with like result. If, as plaintiff claimed on the trial, the accident happened because defendant fell asleep while driving, negligence on the latter's part was thereby established. Devlin v. Morse,
"Q. Now, Bill, just how did this accident happen?
"A. I was driving down the road, hitting north, coming from the south and I don't know what went wrong but my oil gauge was not working just right although the car had been just overhauled and I was more or less watching it and I don't know how we got in the ditch yet.
"Q. You mentioned the oil gauge, what did the oil gauge show?
"A. The oil gauge kept dropping all the time.
"Q. What connection did the oil gauge have with anything that happened?
"A. I probably was looking at the oil gauge and if I glanced at the oil gauge I went in the ditch.
"Q. At the time the accident happened how fast do you think you were going?
"A. About 25 or 30 miles per hour.
"Q. How long do you think you may have looked down at the oil gauge at one time?
"A. Probably a few seconds.
"Q. Long enough to go about how far?
"A. A couple hundred feet.
"Q. You went into the ditch on the left side of this curve?
"A. Yes." *658
Except as indicated by the testimony quoted, defendant offered no explanation as to the cause of his truck leaving the highway. It is apparent that he was not watching the road immediately prior to the accident. His own testimony fully justified such conclusion. It is true that an inference of negligence may not be drawn from the mere fact that an accident occurred. The doctrine of res ipsa loquitur does not obtain in this State. Watrous
v. Conor,
It is a logical conclusion from the evidence that defendant was not keeping a proper outlook. It was his duty to observe the road and not permit his attention to be distracted by some matter that did not constitute a hazard to the operation of his car. No claim is made that an examination of the oil gauge, or any discussion concerning it, was imperative at the time. Nevertheless, defendant, according to his own admission, permitted his observation to be diverted from the road for several seconds while the car was proceeding a distance of approximately 200 feet. Under the circumstances, this did not constitute due care. In Wineman v. Carter,
"A normal boy in his sixteenth year held guilty of negligence as matter of law in so driving an automobile that it collided with another parked on the street, the collision being the result of his inattention while picking up a lighted cigarette which he had just dropped."
Likewise in Sheehan v. Foster,
Error is predicated on the admission, over defendant's objections, of the testimony of a deputy sheriff of the county, who was a witness in plaintiff's behalf. Said witness had in his possession the report that he had taken from the defendant, following the accident, under the provisions of 1 Comp. Laws 1929, § 4722, as last amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4722, Stat. Ann. 1947 Cum. Supp. § 9.1590). Under the specific terms of said statute, a report so made is not "available for use in any court action." The *660
record indicates that the witness was permitted to examine it for the purpose of refreshing his recollection. In answer to questions propounded to him, he read from the report a statement indicating that defendant had admitted falling asleep immediately prior to the accident. It is clear from the answers of the witness that his recollection was not refreshed, for he indicated that his testimony was based entirely upon the report, and that he had no recollection whatsoever of defendant or the statement made by him. The situation is materially different from that involved in Delfosse v. Bresnahan,
During the progress of the trial, the following occurred in the examination of plaintiff's witness, Leo Brooks:
"Q. Where did Mr. Anys state he had left Mike?
"A. He said he left him at the Grand View Hospital and everything was all right. He said he had seen the local police in Ironwood and everything was all right and his truck was fully covered in insurance.
"Mr. Wright: I now move for a mistrial.
"The Court: I do not think the statement came out with any premonition but came out quite spontaneously.
"Mr. Wright: It certainly is a prejudicial statement and contrary to the statute.
"The Court: I do not think it created that impression, it came out so spontaneously. However, the jury will disregard that statement. There is no such question in this case and this has nothing whatsoever to do with the case and the jury is not to be governed at all or guided by that statement and it has no place in this trial. This is an action between Mike Trafamczak and William Anys."
The motion for a mistrial was denied, the trial court expressing the opinion, as indicated in the language above quoted, that the testimony was spontaneous and not anticipated by counsel. We think the trial court was correct in his conclusion and the denial of the motion for a mistrial was not erroneous. InWhite v. Makela,
"We have had occasion to discuss the question here raised, and our conclusions have quite uniformly *662 been that the mere fact that the defendant has insurance has reached the ears of the jurors during the trial does not constitute reversible error, unless an improper use of it is made by counsel for the evident purpose of inflaming the passions of the jury and thereby affecting the result or increasing the size of the verdict, or unless such testimony was designedly injected into the case for such purpose or purposes."
In the case at bar it does not appear that any attempt was made by counsel for the plaintiff to make any use whatsoever of the statement concerning insurance. Neither does it appear that the matter was designedly injected into the case. The form of counsel's question was not such as to call for any statement from the witness as to what defendant had said with reference to insurance.
It is also claimed by defendant that the verdict of the jury was excessive. On the basis of the evidence the claim is not tenable. While the verdict was substantial, it clearly appears that plaintiff sustained injuries of a serious nature. He had a fractured arm, severe head injuries, cuts and abrasions. He was hospitalized for a period of three weeks following the accident, and was unable to work for approximately three months. He was at the time of the occurrence 58 years of age, a laboring man in good health. At the time of the trial, in July, 1946, he claimed that he was still suffering ill effects because of his injuries, and gave testimony tending to show that his earning capacity had been materially reduced. The awarding of damages for pain and suffering rested in the sound judgment and discretion of the jury. It cannot be said on this record that such discretion was abused, or that the size of the verdict indicates that the jury was in any way improperly *663
influenced in returning it. Cleven v. Giffin,
For the reasons indicated, the judgment is affirmed, with costs to plaintiff.
BUSHNELL, C.J., and SHARPE, BOYLES, REID, NORTH, DETHMERS, and BUTZEL, JJ., concurred.