Carpenter v. Cleveland , 32 Mich. App. 213 ( 1971 )

32 Mich. App. 213 (1971) 188 N.W.2d 248

CARPENTER
v.
CLEVELAND

Docket No. 8564.

Michigan Court of Appeals.

Decided March 30, 1971.

Sinas, Dramis, Brake & Turner (by Lee C. Dramis), for plaintiffs.

Sondee & Henderson, for defendant.

Before: HOLBROOK, P.J., and R.B. BURNS and J.J. KELLEY, JR.,^[*] JJ.

PER CURIAM.

Plaintiff wife was a passenger in an automobile operated by one Benhart in an easterly direction on a through highway. Benhart intended to make a left turn at the intersection. Defendant was driving his automobile in a southerly direction on an intersecting road. A collision occurred. Plaintiff wife alleged that her resulting injuries were caused by defendant's failure to yield pursuant to the stop sign. Defendant alleged that Benhart caused the collision by cutting across the intervening northwest corner in making the left turn so as to enter defendant's south-bound lane of travel and collide with defendant's vehicle north of the intersection. Plaintiff husband sought damages for loss of his wife's company and companionship. Following an adverse jury verdict, plaintiffs appeal, making two claims.

I. The trial court erred in refusing to grant a new trial on the basis that the court's instructions failed to inform the jury that plaintiffs could recover if they found that plaintiffs' driver had cut across and defendant had entered the intersection (i.e., if both drivers were partly at fault).

Examination of the instructions reveals that they fully, clearly and correctly covered the issues, including that which plaintiffs now raise:

"You will find for the defendant if the plaintiff was not injured or damaged or if the defendant was not negligent or if such negligence was not the proximate cause of the injuries or damages. * * * If you determine that the defendant did enter M-60, which is a state trunkline, from the South Bend Road without stopping, he would be guilty of negligence as a matter of law, and if you further find that such negligence was the proximate cause of the ensuing collision, the defendant, Cleveland, would be liable to the plaintiff for such damages as have been shown by the evidence."

At the conclusion of the instructions plaintiffs' counsel stated on the record "I'd like to say, your Honor, it's a fine charge, I have no exceptions at all." Having failed to object at trial, plaintiffs may not now be heard to complain. GCR 1963, 516.2.

II. The trial court should have granted a new trial on the basis that the verdict was against the great weight of the evidence.

A new trial may be ordered if the court in its discretion considers the verdict to be against the great weight of the evidence. GCR 1963, 527.1(5). Davis v. Belmont Creamery Co. (1937), 281 Mich 165. An appellate court will interfere with the trial court's exercise of its discretion in this regard only if abuse of its discretion is so plain that upon consideration of the facts upon which the trial judge acted an unprejudiced person can say that there was no justification or excuse for the ruling made. Patzke v. Chesapeake & O.R. Co. (1962), 368 Mich 190.

Examination of the record reveals that, both during his deposition and on trial, the defendant testified repeatedly that his car never reached the intersection, that at the time of impact it stopped north of the intersection. Believing this testimony, the jury could have determined these to be facts and have concluded therefrom that Benhart's actions were the sole proximate cause of the collision. The trial judge did not abuse his discretion.

Affirmed. Costs to defendant.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.