In Re Olney's Estate , 309 Mich. 65 ( 1944 )

It is apparent that plaintiff Bennett, driving in a southerly direction, was not watching the road ahead of him. He testified he knew nothing of the accident that had occurred. He even inquired, after the accident, of witness Squires what had happened. He observed the Hanna house at his right just before the accident, said the women were talking about it, and that he took a look at it. His negligence is established by his own testimony.

Both of the occupants of the Olney car were killed by the accident. Mrs. Bennett was also killed, leaving at the time of trial Bennett and his nephew's wife the only survivors of the occupants of the two cars.

The only disinterested witness to the accident was Leo L. Squires who was working on the last rows of shingles on the very front end of the north side of the front gable of the Hanna house. His attention was called to the accident by the brakes squeaking or some other thing of which he was not sure and he noticed the two cars when they collided. They came together about 60 or 75 feet south of the driveway leading toward this house. It appeared from where he was looking as if both cars were in the center of the pavement. The witness was high up, there was nothing to interfere with his view, and it looked as if the front end of both cars sort of jumped into the air, the car on theeasterly side of the pavement turning completely around so that it faced southeast.

The testimony of this entirely disinterested and apparently credible witness is not contradicted by any witness except the impeached witness, Eunice Hawkins Cornelius, who had worked as waitress for plaintiff six years in his hotel, is married to his nephew and was riding with plaintiff in his car. She stated to State trooper Froberg within 15 minutes after the accident that she had her head down at the time of the collision, was reaching for a basket of grapes on the floor of the car and didn't recall how the accident happened. At the trial she undertook to relate in her testimony that Bennett's car was entirely on the westerly half of the pavement at all times and described the Olney car as leaning toward the Bennett car and that the collision took place on the west half of the road.

Mr. Olney, driving northerly on his right hand side of the road, must have noticed a jeopardizing change in the direction of the Bennett car as it began to cross over onto the easterly side of the road. Nothing else would have caused him to apply his brakes so that there were skid marks for 33 feet before the point of collision, beginning when his car was entirely on his side of the road and ending with his left wheel 2 1/2 feet west of the median line.

It, therefore, becomes a reasonable conclusion from the undisputed nature of Olney's skid marks that the Bennett car did begin to go over onto the east and wrong side of the highway. Evidently the Bennett car must have swerved again to the right so that the two cars came in contact practically in the middle of the highway. The confusion of Olney was caused by the preceding negligence of Bennett. In any event, the collision having been shown to have occurred in the center of the road, plaintiff is clearly guilty of negligence and cannot recover. Loucks v. Fox, 261 Mich. 338.

The evidence as to plaintiff's negligence clearly preponderates in favor of the defendant. The verdicts for plaintiffs are contrary to the great weight of the evidence, and judgments and verdicts should be set aside. A judgment should be entered for defendant in both cases.