Fielstra v. Mid-America Engineering Corp.
Fielstra v. Mid-America Engineering Corp.
Opinion of the Court
On December 2, 1957, at approximately 9 o’clock in the forenoon plaintiff Jacob Fielstra was driving his Chevrolet automobile in a southerly direction on M-20 in Muskegon county. His wife was a passenger in the car. At the same time defendant Perttu, an employee of the other named defendant, was operating a vehicle known as an end-loader in a northerly direction on said highway. The 2 vehicles collided, as a result of which plaintiffs’ automobile was damaged, and both plaintiffs were injured. They instituted separate actions against defendants to recover damages, plaintiff Preferred Insurance Company joining with Mr. Fielstra in his case as subrogee to the extent of the claim resulting from the property damage. The cases were consolidated for trial in circuit court and were heard before the circuit judge without a jury. Judgments in favor of plaintiffs were rendered, and defendants have appealed.
The pavement at the place where the collision occurred was 20 feet in width, consisting of a lane for northbound traffic 10 feet in width and a like
Plaintiff Jacob Fielstra testified before the circuit judge that he was operating his automobile prior to the accident at a speed of 30 to 35 miles per hour. The defendant Perttu claimed that he was driving the endloader at approximately 10 to 15 miles per hour at the time of the collision. It may be noted in this connection that a witness for defendants, who was driving a pickup truck behind the endloader, estimated the speed of defendants’ equipment as between 15 and 20 miles per hour. Said witness further testified that he had followed the endloader for approximately 2-1/2 miles, seeking an opportunity to pass it, and that according to his observations defendant Perttu did not at any time cross the center line of the road. Appellants contend in effect that the failure of the trial judge to accept as correct the testimony of their witness was erroneous and resulted in the rendering of judgments not in accord with the preponderance of the evidence.
At the place where the collision occurred the highway curved to plaintiffs’ left as they proceeded in a southerly direction. Their automobile was thrown into a roadside ditch and tipped over on its side. Defendants’ equipment lost the left forward wheel,
It appears from the testimony in the case that defendants’ equipment, the endloader, was designed to be operated in either direction. The engine was placed at one end and at the other a large shovel, also referred to in the testimony as a bucket, designed for use in either moving earth or in excavating-operations. The cab in which the driver was seated was in the middle. The seat which defendant Perttu occupied at the time of the accident was approximately 28 inches square, without arm rests. On the occasion in question the motor was at the northerly end of the equipment and the driver, as he claimed, was sitting facing the' center line of the road and looking over his right shoulder as he proceeded. ITe was aware of the pickup truck behind him, and apparently anticipated that the driver might attempt to pass the endloader.
Defendant Perttu testified that as he was proceeding around the curve and looking in a northerly direction he saw the Fielstra automobile coming around the curve approximately 600 feet distant. He
“Q. Then you turned back around to look in a northerly direction again, did you?
“A. That’s right.
“Q. And that you say about the time you looked around the accident happened?
“A. That’s right. I noticed the car coming right towards me.
“Q. How far was the Fielstra vehicle from you at that point when you looked back around?
“A. About 20, 30 feet.
“Q. 20 or 30 feet. And on which side of the road was the Fielstra vehicle then?
“A. I couldn’t tell you that.
“Q. You couldn’t say. In other words, there wasn’t anything unusual about it when you saw it at that point 20 feet from you?
“A. The only thing I noticed unusual he was coming at me.
“Q. By coming at you, had he crossed the center line, yet?
“A. Well, I knew where I was at, so that in order to hit me he had to.
“Q. But you didn’t see him come across the center line, did you?
“A. No, I didn’t. .
*382 “Q. So that when yon say he came across the center line that’s jnst yonr opinion based upon where you thought you were, is that right?
“A. That was my opinion based upon where I knew I was on my side of the center line.
“Q. All right. But you say that between a second or two immediately before this accident you were looking in a southerly direction toward that pickup?
“A. Yes, I was, just glanced.”
It must be borne in mind that defendants’ equipment was traveling around the curve at the time the driver looked back for the purpose of observing the pickup truck. Apparently his observation was of sufficient length to enable him to reach a definite conclusion that the driver did not contemplate attempting to pass at that point. According to defendant Perttu’s testimony, when he had first looked back to the south the Fielstra car was several hundred feet distant; when he looked again to the north it was within 20 to 30 feet from him. At the speeds that the vehicles were proceeding the collision must have occurred in less than 1/2 second. It is a fair inference that during the interval that defendant Perttu was looking to the south he was not in position to note the precise course of his vehicle.
The positions of plaintiffs’ automobile and the endl'oader following the collision tend to corroborate plaintiffs’ claims as to how the accident occurred. Photographs were introduced in evidence on the trial in circuit court, and have been returned to this Court as a part of the original record, showing rather clearly the damage to each vehicle. The nature of such damage is not conclusive, but considered in connection with other proofs it tends to support the conclusion of the trial judge as to where and how the collision occurred.
The judgments from which the defendants have appealed are affirmed.
Reference
- Full Case Name
- FIELSTRA v. MID-AMERICA ENGINEERING CORPORATION
- Status
- Published