In Re Boyer's Estate

Fijad, C. J. About 3 o’clock a. m. of July 22,1934, on a curve, a car, driven by Frank Gardner, 15 years old, collided with a car, owned and driven by Dr. C. H. Boyer and in which plaintiff was riding as a passenger for hire. Boyer died the next day. Plaintiff and Gardner each filed claim for $50,000 damages against Boyer’s estate. The claim of negligence is that Boyer was driving on the left, or wrong, side of the road and caused the collision. Defendant had verdict of a jury and judgment. Plaintiff was asked the question: “What side of ITS-112 were you when injured?” On objection the court excluded an answer as a matter equally within the knowledge of the deceased. The exclusion was error. Drivers do not always know or realize their precise position on the highway, especially at night. There was no evidence that Boyer had knowledge of his position with reference to the center of the road at the time of the *620 collision. The test is stated in Noonan v. Volek, 246 Mich. 377. That the fact sought to he shown was known to the deceased cannot be inferred. It must affirmatively appear from testimony or circumstances, or the evidence should be received and submitted to the jury with instructions to disregard it if found to have been equally within the knowledge of the deceased. Defendant contends the error is not reversible because Gardner had testified positively that Boyer was on the wrong side of the road and his testimony was undisputed, Chamberlain v. Eddy, 154 Mich. 593. The verdict demonstrates that the jury did not credit Gardner’s testimony and this left the plaintiff wholly without a case. Perhaps plaintiff’s corroboration of Gardner would have resulted in a different verdict. Moreover, there was testimony of three witnesses that plaintiff had told them in substance that Boyer was not to blame for the collision but he had done all he could to turn out of the road and Gardner had crashed into his car. In view of the testimony and the narrow character of the issue it cannot be said affirmatively that the exclusion was not prejudicial. The other points have little merit and need no discussion. Reversed, with new trial and costs. North, Wiest, Butzel, Bushnell, Sharpe, Pot-tee, and Chandler, JJ., concurred.