Tuinstra v. Lynema

*537 Dethmers, J. Plaintiff sued to recover for damages resulting from personal injuries sustained as a guest passenger in an automobile driven by Ms brother-in-law, defendant Lynema, when the latter undertook to pass the automobile of defendant Campbell and collided head on with one driven by defendant Soop and owned by defendant Standard Oil Company. Defendants’ motions for directed verdict, judgment non obstante veredicto, and new trial were denied, the jury returning a verdict for plaintiff of $30,799.78 against defendants Lynema, Soop and Standard Oil Company, who appealed from judgment thereon, and for defendant Campbell of no cause for action with respect to which plaintiff does not appeal. We consider first the appeal of defendants Soop and Standard Oil Company, starting with their asserted right to judgment non obstante veredicto. For that purpose the testimony, viewed in the light most favorable to plaintiff, discloses the following: That Lynema was driving in a southerly direction and, at a point a mile back from the scene of the accident, got over onto the left side of the pavement to pass an automobile, never returning to the right side again; that thereafter he undertook to pass Campbell’s automobile, which accelerated, but he nonetheless drove up along side it and the 2 automobiles then proceeded abreast of each other at a speed of from 50 to 55 or 60 miles per hour for a distance of 1/2 mile; that while they were proceeding thus defendant Soop’s automobile, approaching them from the south, hove into sight from behind foliage around a slight curve 1,000 feet distant; that plaintiff then told Lynema to “pull in,” but that he failed to do so although plaintiff thought that he could have done so at that time; that there were other automobiles ahead of Campbell also proceeding south but at a slower rate of speed than he; that Lynema admitted seeing *538 .the Soop automobile first when it was 600 or 700 feet distant, considered getting ahead of the Campbell car and onto his right side of the pavement, decided he could not do so because the car ahead of Campbell was too close, then considered getting in behind Campbell but believed he could not do so because at .the moment the latter, as well as Lynema, had begun to slow down, and then, when 250 to 300 feet separated him from Soop’s oncoming car, he began to turn left onto the east shoulder; that the shoulder was 6. feet wide, hard and firmly constructed of gravel; that as Soop approached and saw or should have seen Lynema coming on the east lane of the pavement, he did not' pull off onto the shoulder to permit Lynema to get through, but, as he testified, merely applied his brakes and pulled over to the east .edge of the pavement; that after Lynema drove onto the shoulder Soop also drove partially onto the' shoulder and a collision occurred between their automobiles on the east edge of the pavement. In the face of such facts should Soop be held to have been free from negligence, as a matter of law? Did plaintiff fail to sustain the burden of proving Soop guilty of any negligence which was a proximate .cause of plaintiff’s injuries, or, on the contrary, did .Soop’s failure to drive onto the shoulder while Lynema was approaching him on the pavement, or his partial turning onto the shoulder thereafter, and his whole course of conduct, in the light of what was plainly there to be seen by him, present a question of fact for the jury as to whether he had been guilty of such negligence? The meaning of Lijewski v. Wrzesinski, 328 Mich 129; Molnar v. Gordon, 337 Mich 615; and Bramer v. Ames, 338 Mich 226, is definitely that when a motorist, driving on his own right side of the pavement, meets another wrongfully approaching -him in that same lane, the former must “use such •means as. was fairly within his power to avoid the *539 collision,” including turning out to • the right if he can safely do so and it reasonably appears necessary in order to avoid an accident; and that failure so to do gives rise to a question of fact as to his negligence. While Soop had a right to rely on the assumption that Lynema would observe the law and get back on his own side, nevertheless, if, in due course, it appeared or should have become apparent to a reasonable person in Soop’s position that Lynema could not or was not going to do so and if, at that time, Soop still could have acted in safety to avert the collision a duty arose on his part to act acT cordingly. Whether that was or was not the situation and, consequently, whether he was guilty of negligence, was a question of fact for the jury. Defendants Soop and Standard Oil Company also contend that the verdict was against the great weight of the evidence. In this connection they point to testimony of defendants’ witnesses that the collision occurred almost immediately after Lynema pulled out to pass Campbell, when Soop’s car was only 300 feet distant, and also to testimony that foliage at the curve which Soop was approaching just before the scene of the accident interfered with vision to the extent that the Lynema car became visible to Soop not when it was 1,000 feet distant, as plaintiff testified, but when only 600 feet distant; and that when Lynema’s automobile first became visible to Soop the Campbell automobile had not yet begun to slow down and consequently it was still possible at that moment for Lynema to have gotten back into his own right lane. What the facts were ‘in that respect and, regardless of whether the distance separating them was 1,000 feet or 600 feet, the question of whether to a reasonable and prudent man in Soop’s position it would have appeared that Lynema could not get back, and that therefore it was necessary for Soop to drive onto the shoulder and- wheth *540 er lie could or should have succeeded in getting off the pavement altogether, as Lynema ultimately did, in time to avoid a collision, were all questions of fact under the evidence in the case. It cannot be said that the great weight of the evidence was contrary to the jury’s resolving of those questions as reflected in their verdict. Defendants urge that the judgment should be vacated because obtained through collusion and fraud in that Lynema admitted in testimony before the jury that he had consulted with plaintiff’s attorney, examined plaintiff’s declaration with plaintiff, and been assured by plaintiff that, if judgment entered against Lynema, plaintiff would not enforce it beyond the amount of Lynema’s' insurance. Not in point is the cited case of Wright v. Hake, 38 Mich 525, in which it was held that sureties on a replevin bond were not bound by a judgment on the bond obtained without their knowledge by the fraud, collusion and stipulation, entered into between the principal and obligee. The fact that plaintiff and Lynema are brothers-in-law and that plaintiff made the mentioned promise could not serve, thereafter, to preclude plaintiff from obtaining any judgment. Those facts were pertinent as to the credibility of Lynema as a witness, and as such they were fully presented to the jury to aid them in determining wha,t credence they would give his testimony. Consequently no fraud was perpetrated on the court nor on judicial process in that connection. We find no merit in Soop’s contention that the verdict* should be set aside because of confusion in the minds of the jurors as indicated by their holding Lynema guilty of wilful and wanton misconduct and at the same time absolving Campbell from blame. The positions of the two in the case were not so identical as to require like results. The further fact that the jury announced that they had found *541 Soop guilty of contributory negligence rather than negligence did not constitute fatal error vitiating a verdict supported by the evidence. The record does not disclose, as claimed, that the verdict resulted from prejudice. Plaintiff suffered a fractured right femur and broken kneecap, resulting in a crooked femur and shortening of that leg by 1 inch as well as permanent limitation of motion of the right thigh and knee; he was unconscious at first and thereafter suffered from petit mal seizures; he was hospitalized for 1 month, in bed for 3 months, and unable to walk without crutches or canes for 10 months; his physician testified to permanent impairment of ability to do certain types of work; plaintiff testified that at the time of trial he could not do the work that he had formerly performed, and was able to work at an easier job only about half time; he also complained of memory blocks. Plaintiff offered proofs of actual monetary loss during the 16 months from date of injury to trial of $5,636.18, consisting of doctor and hospital bills of $1,098.58 and loss of wages totalling $4,537.60. The testimony shows that he endured much pain and suffering. At the time of trial he had a life expectancy of 30 years. Was the verdict excessive? A similar claim of excessive verdict was considered and discussed in Samuelson v. Olson Transportation Co., 324 Mich 278, which is much in point here. We cannot say that the verdict was secured by improper means, prejudice or sympathy, or that it so shocks the conscience as to require substituting our judgment for that of the jury and hence setting the verdict aside. A reading of the entire charge leaves us unable' to agree that the court overemphasized the plaintiff’s case to the jury or that the charge was tantamount to a directed verdict for plaintiff. It fairly •covered the subject matter of defendants’ requests *542 to charge, including the right of defendant Soop to rely on the assumption that Lynema would observe the law and return to his right side of the pavement until it appeared or should have become apparent to a reasonable man that he would not or could not do so. It properly defined the nature of the duties resting on Soop. We find that no prejudicial error resulted from the court’s rulings on admissibility of proffered evidence. • In addition to the foregoing, defendant Lynema raises the further question of whether the evidence was 'sufficient to go to the jury touching his wilful and wanton misconduct of which he was found to be guilty. In addition to the facts concerning his conduct, as above noted, with respect to his state of mind immediately preceding the accident, he testified significantly as follows: That as he drove his automobile for more than a half mile abreast of the Campbell automobile, before seeing Soop’s approaching automobile coming from behind the foliage at the curve, he and Campbell maintained a constant speed of from 50 to 55 or 60 miles per hour; that he had planned to pass 2 other automobiles ahead of Campbell; that during that time he could have increased his speed and passed Campbell or decreased it and, in either case, have turned over onto his right side of the pavement, as plaintiff testified that he finally had urged him to do; that he did not know why he had not done so, and then, that he had failed to do so because he was leaving it up to Campbell to either speed up or slow down, and that he had maintained a steady, uniform rate of speed, waiting for Campbell to increase or decrease his speed so as to let Lynema get back on the right side of the pavement. Under all the testimony in the case should Lynema have been held to have been, *543 as a matter of law, not guilty of wilful and wanton misconduct, leaving no question in that regard for the jury? That, we think, would have run contrary to our holdings in Kocks v. Collins, 330 Mich 423; Price v. Western, 330 Mich 680; and Cain v. Enyon, 331 Mich 81. Defendant relies on earlier decisions. Not to he overlooked is the significance of the statement in Price, quoted with approval in Cain, that: “To the extent that previous decisions of the Court seem to hold to the contrary we now decline to follow the same.” The holding in those 3 eases, reluctantly concurred in by the writer, undoubtedly represented a change from the view to which this Court earlier had adhered, and leads to the conclusion here that a jury question was presented. The verdict was not against the great weight of the evidence. Affirmed, with costs to plaintiff. Butzel, C. J., and Cakr, Bushnell, Shabpe, Boyles, Reid, and Kelly, JJ., concurred.