Zullov.Detroit Creamery Co.

Supreme Court of MichiganNov 10, 1937
281 Mich. 678 (Mich. 1937)
281 Mich. 678275 N.W. 730

Docket Nos. 115, 116, Calendar Nos. 39,642, 39,643.

Submitted October 13, 1937.

Decided November 10, 1937.

Appeal from Wayne; Campbell (Allan), J. Submitted October 13, 1937. (Docket Nos. 115, 116, Calendar Nos. 39,642, 39,643.) Decided November 10, 1937.

Separate actions of case by Josephine Zullo, Nick Zullo and William Barning against Detroit Creamery Company, a Michigan corporation, for personal injuries sustained in a collision between an automobile and a milk wagon. Cases consolidated for trial. Verdicts and judgments for defendant. Plaintiffs Zullo appeal. Reversed, with new trial.

Ricca Olds, for plaintiffs Zullo.

Vandeveer Vandeveer, for defendant.

About four o'clock on New Year's morning, 1935, William Barning, with Josephine and Nick Zullo as passengers, was driving north on St. Jean avenue in the city of Detroit. Robert Hersch, a salesman for defendant, was driving a horse-drawn milk wagon south on St. Jean avenue. A collision occurred between Barning's car and the milk wagon. Actions for damages by Barning, Josephine and Nick Zullo were consolidated and, on trial before a jury, defendant had verdicts of jury and judgments.

The issue made by the testimony was clear cut. It was plaintiffs' claim that Barning at all times was on the east side of the street and that Hersch drove across the center line and struck him. It was defendants' claim that Hersch at all times was on the west side of the street and that Barning's car skidded on the ice, across the center line, and ran into the milk wagon. The testimony presented no issue of contributory negligence of Barning. If Hersch crossed the center line and struck Barning's car, defendant is liable. If Hersch remained on his own side of the street, defendant is not liable.

The court failed to give definite instructions upon the duty and conditions of liability of defendant. It charged rather extensively upon defendant's claim that Barning was guilty of contributory negligence under the doctrine of "assured clear distance ahead." The doctrine was not applicable to the case as presented. We also think the comments of the court on the testimony and claims of plaintiffs were not within the limitations set up in People v. Lintz, 244 Mich. 603, and were unduly unfavorable to plaintiffs.

Reversed with new trial, and costs.