Wood v. Priborsky

Potter, J. Plaintiff sued defendant for hitting him with his automobile. Plaintiff claimed defendant was negligent in driving recklessly at an excessive rate of speed, on the wrong side of the street, in violation of the ordinance of the city of Detroit, at night, with defective headlights, without signaling plaintiff with his horn. There was judgment for plaintiff. Defendant appeals, claiming plaintiff was guilty of contributory negligence, the verdict was contrary to the preponderance of the evidence, and against the great weight of the evidence. *558 The case was tried before the circuit judge without a jury. There was ample testimony to support the judgment. We cannot say the verdict was contrary to the preponderance of the evidence or against the great weight of the evidence. Defendant insists plaintiff was guilty of contributory negligence, having been struck after he had crossed the center portion of the highway, by defendant’s automobile, which should have been on the opposite side of the highway. It is possible the plaintiff might have seen defendant’s automobile if he had looked in the direction from which it came, but the fact he did not see defendant’s automobile, driving on the wrong side of the street, until at about the time it struck him, is not contributory negligence as a matter of law. The case was closely tried. The question of plaintiff’s contributory negligence was a question upon which the facts were in dispute. Primarily the determination of those facts was for the trial court who saw the witnesses and heard their testimony. We find no error. Judgment affirmed, with costs. Clark, C. J., and McDonald, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.