Harris v. Bernstein

Moore, J. On the afternoon of March 24, 1914, plaintiff went on an automobile ride with two other ladies. They were driving south on Antoine street, which runs in a northerly and southerly direction and approached Columbia street which intersects Antoine street at right angles. The accident out of which this action arose occurred at the intersection of these [686] two streets. Only two witnesses gave testimony as to the facts of the accident. The defendant was sworn. He was called under the statute by the plaintiff to show his ownership of the machine, but did not give his version of what occurred. The court directed a verdict for the defendant on the ground that the evidence showed that plaintiff’s driver was guilty of contributory negligence, and that it failed to show the defendant was guilty of any negligence. The case is brought here by writ of error and the question is, Should it have.been submitted to the jury? It has long been the law in case of a directed verdict that the evidence on behalf of the appellant is to be treated in the light most favorable to appellant. Foley v. Railway Co., 179 Mich. 587; Spreng v. Railway, 197 Mich. 343. The diagram on opposite page was offered in evidence. It was stipulated in relation thereto as follows: “The diagram hereto attached may be inserted in the record of the cause for the purpose of illustration to indicate to the court the approximate distances and locations and it is the intention of the parties hereto that the objects indicated on such diagram and the distances given thereon shall be conclusive as to such objects and distances only so far as corroborated by the testimony.” We quote from the testimony of the plaintiff: “I have ridden in automobiles ever since they have been, and know that we were driving at a moderate rate of speed and, as compared to the rate of speed which we were driving, the car which collided with us was going at a faster rate of speed. I saw the car before it collided with us. I know that the lady who was driving our car blew her horn for I heard it. * * * After the impact of the collision it had the effect to turn our car * * * it knocked the hind end of our car around and we came to a stop in front of * * * the store on the southeast corner. * * * I [688] only saw Ms automobile at a glance. I saw it was coming toward us. Mrs. Hunt screamed just before we were struck. Our automobile was on the south side of the intersection of Antoine and Columbia streets at that time. Her automobile was in front of the automobile that was coming toward us, when she screamed but it struck her back wheel. I thought it was going to strike us quite square or broadside but our machine moved forward a sufficient distance so that it struck the back wheel and that shoved our automobile around. * * * [688] “Q. How far across the street did it knock you? “A. We were nearly across the street when it struck. * * * I was not watching Mrs. Walters. I was watching the other automobile. She moved — turned out more, but I did not see her because I was watching the other machine. We had reached the corner of Antoine and Columbia when I saw it coming (pointing) about where the mark is. I looked up Columbia street and saw the car coming down Columbia street. I would say that at that time we were at the intersection of Antoine and Columbia street, a little to the north side just about opposite the north curb of Columbia street when I first saw it. The other automobile was coming down Columbia. I am sure it was his machine that struck us and that it was going faster than we were, quite a bit faster. We were not going fast. I saw the other car coming across the street up Columbia street a little way. I could not say how many feet, possibly 50 feet. I could not say how many feet back, but it was before they had reached Antoine street. It was before they had reached Antoine street that I saw it. We were then at the north curbstone of the intersection, the north curb of Columbia. I could not tell how many miles per hour we were traveling. I thought the other automobile was going to run directly into the side of our car, just before we struck. * * * “Q. You say you don’t pretend to know about the number of feet or inches in making estimates? “A. No, sir. “Q. You do not know that had the doctor here been on the opposite side of the street, continuing in a straight line, would there have been room enough be [689] tween that straight line, if he had continued, between then and the time you struck, to have gone by without your hitting him? “A. Yes, sir.” This testimony shows the substantial accuracy of the diagram. The statutory enactments of this State in force at the time of this accident bearing on this point read: “Whenever any persons shall meet each other on any bridge or road, traveling with carriages, wagons, carts, sleds, sleighs or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the traveled part of such bridge or road, so that the respective carriages, or other vehicles aforesaid, may pass each other without interference.” Section 4291, 2 Comp. Laws 1897. This statute is entitled “The Law of the Road.” Section 6, subdivision 4, of Act No. 318 of the Public Acts of 1909, provides: “Whenever a person operating a motor vehicle shall meet on a highway any other person riding or driving a horse or horses or other draft animals or any other vehicle, and there being no occasion to stop as above provided, the person operating such motor vehicle shall seasonably turn the same to the right of the center of the traveled portion of the highway; while the person approaching shall likewise turn from the center of the traveled portion of the highway so as to pass the motor vehicle on the opposite side of the center of the highway to which the motor vehicle has been turned. And any person so operating any motor vehicle shall, at the intersection of a public highway, keep to the right of the intersection of the centers of such highways when turning to the right and 'pass to the right of such intersection when turning to the left.” In the instant case there is testimony that the automobile in which plaintiff was riding was going south on Antoine street and when it reached the north curb [690] of Columbia street the automobile of defendant was proceeding west on Columbia street and when the driver of the automobile on Antoine street was at the north curb of Columbia street, she sounded the automobile horn and at that time the automobile of defendant was east of the east curb of Antoine street and continued west thereon, on the south side of the center of the street and instead of passing to the right of the center of the two streets, continued west on Columbia south of the center of the two streets and collided with the car of the plaintiff when that car was where it had a right to be, and the defendant’s car did not have a right to be. We think the inferences fairly to be drawn from this situation and this testimony made a question for the jury both as to the contributory negligence of the plaintiff and the negligence of the defendant. See Amanta v. Railroad Co., 177 Mich. 280; Congdon v. Railway Co., 179 Mich. 175; Bouma v. Dubois, 169 Mich. 422; Brown v. Mitts, 167 Mich. 469; Weber v. Beeson, 197 Mich. 607. Judgment is reversed and a new trial is ordered, with costs in favor of the plaintiff. Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.