Docket No. 12, Calendar No. 34,975.
Submitted October 7, 1930.
Decided December 2, 1930.
Error to Kent; Brown (William B.), J. Submitted October 7, 1930. (Docket No. 12, Calendar No. 34,975.) Decided December 2, 1930.
Case by Andrew Fabbro against Conrad J. Soderstrom for personal injuries. From a judgment for plaintiff, defendant brings error. Affirmed.
Lloyd E. Cooper ( Roger I. Wykes, of counsel), for plaintiff.
Mason, Alexander McCaslin ( Clifford A. Mitts, of counsel), for defendant.
This action was brought to recover damages for injuries received in an automobile accident which occurred at the intersection of Willard avenue and Griggs street in the city of Grand Rapids, Michigan. The negligence charged is that defendant did not yield the right of way which the circumstances required him to do, that he did not have control of his car, that he turned it to the left toward the wrong side of the street instead of driving to the north behind the plaintiff's car, where he had ample space to pass.
On the trial the defendant moved for a directed verdict on the ground that there was no evidence of his negligence and that the plaintiff was guilty of contributory negligence as a matter of law. The motion was denied and the issues submitted to the jury. The verdict was in favor of the plaintiff in the sum of $2,250. On motion for a new trial, the court reduced it to $1,500 and the plaintiff accepted the reduction. Judgment was entered for that amount, and the defendant brings error, asking a reversal on the ground that the court erred in refusing to direct a verdict in his favor, that there was error in permitting the plaintiff to recover for loss of earnings, and that the verdict was against the great weight of the evidence.
There is no merit to the claim that the court erred in refusing to direct a verdict for the defendant. The testimony most favorable to the plaintiff shows that, as the two cars approached the intersection, he was driving south on the right side of Willard avenue and was closer to the corner than the defendant, who was coming west on Griggs street. Whether the circumstances were such as to give the plaintiff the right of way was a question for the jury. The plaintiff testified that when he reached the intersection he slowed his speed to allow a car coming from the west to cross in front of him, that when it passed he started across and had gone far enough so that there was ample space for the defendant, driving on the proper side of the street, to pass behind him, that instead of doing so the defendant turned to the left and ran into the plaintiff and subsequently admitted that, at the time of the accident, he had lost control of his car. This testimony tends to show the defendant was negligent and that the plaintiff was free from negligence. It presented a question for the jury. The court did not err in submitting it.
In view of the lack of competent testimony as to loss of earnings, the trial court was wrong in submitting to the jury that element of the plaintiff's damages. At the time of the accident, the plaintiff was an independent contractor engaged in the business of laying tile floors and doing marble and terrazza work. He testified that, while disabled by his injuries, he paid a man $10 a day to do his work. There was no evidence of value. The court instructed the jury that he was entitled to recover the amount he had paid for such services.
"The true measure of plaintiff's damages upon this branch of the case would be the value in the open market of the labor and services which he had been able to perform before the injury and which because of the injury he was unable to perform thereafter." Seabury v. Railway, 194 Mich. 423.
This error was called to the attention of the court in a motion for a new trial. It was there claimed that the verdict was excessive to the extent of what the jury might have allowed for loss of earnings. In deciding the motion, the court made a substantial reduction in the amount of the verdict, a reduction quite sufficient to cure any prejudicial effects that may have followed from the error in permitting a recovery for loss of earnings. The verdict as reduced is very reasonable in view of the evidence on other elements of the plaintiff's damages. The error was without prejudice.
Considering the fact that in finding a verdict for the plaintiff the jury accepted the testimony of one witness against that of several, it is urgently insisted by the defendant that the court erred in denying his motion for a new trial.
The jury is the trier of the facts. If their verdict is against the clear weight of the evidence, it is the duty of the trial judge to correct it. He has an opportunity to do so in passing on a motion for a new trial. When he has weighed the evidence and approved of the verdict, this court will not disturb it unless there are very clear reasons for doing so. The consideration which this court will give to his judgment is well stated in applicable language by Justice FELLOWS in Pachuczynski v. Railway, 202 Mich. 594:
"But in the determination of the question in this court it must be borne in mind that this court is not the trier of the facts. We cannot invade the province of the jury. It must also be kept in mind that the trial judge heard and saw the witnesses, was in a position to judge of their credibility and their mental capacity; that the presumption that he correctly measured them must be considered, and that we may not set aside a verdict unless it is manifestly against the clear weight of the evidence."
In the instant case, the plaintiff's testimony was squarely contradicted by that of three witnesses to the accident, but there is nothing in the record to indicate that the jury was influenced by prejudice or sympathy or by any other matter than the evidence. There was evidence to support their verdict, and we cannot say that they did not correctly weigh it. The trial judge was of that opinion and we agree with him.
The judgment is affirmed, with costs to the plaintiff.
WIEST, C.J., and BUTZEL, CLARK, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.