The evidence in this case clearly preponderates in favor of defendant and for that reason I cannot concur in the opinion of my Brother Mr. Justice NORTH.
Shortly after the accident and while in the hospital, plaintiff signed a written statement prepared by police officer McManman, in which statement plaintiff said he had no recollection of how the accident occurred. The officer was merely acting in his capacity as officer of the law, was not the agent of any interested party, and was not shown to be interested in any endeavor to trap the plaintiff into making damaging admissions. Although plaintiff was laboring under some confusion after the accident, the officer found him capable of answering questions.
That plaintiff said he had no recollection as to how the accident happened was also testified to by the doctor who examined plaintiff when the police officer was not present.
Defendant testified that at the hospital and before the doctor called on plaintiff there, plaintiff said to defendant that it wasn't her fault that the *Page 191 accident happened. Plaintiff when asked as to that matter testified:
"Q. Mr. Kurta, you said at the hospital that night you did not tell these people that the accident was your own fault?
"A. I don't remember.
"Q. You don't remember?
"A. Yes, I don't remember.
"Q. You don't mean to say you did not tell them that?
"A. No, I don't remember."
Plaintiff, who admits that he drank four beers during the night in question, proceeded on the witness stand to relate a story not only contradictory to his signed statement and the statement he had made to the doctor, but also inconsistent with the undisputed fact that he was lying on the south side of US-2 after the accident was over, about 40 feet southeast of the place where plaintiff claims he was struck.
It could not very well be true (as plaintiff testified) that when at a point two feet south of the north side of US-2 he made a quick turn toward the north and was struck by defendant'seastbound car with the result that he was thrown what must have been nearly 40 feet in a southeasterly direction. It is highly improbable that a body going north would, when struck by the left fender of an eastbound car, go southeast. Further, the impact in order to throw plaintiff southeast about 40 feet would of necessity cause broken bones or at least something beside the scratches and bump testified to by the doctor, and in all probability would cause some visible damage to defendant's car, and it is undisputed that no damage was done defendant's car.
Plaintiff made statements to the unemployment compensation commission and on such statements *Page 192 obtained unemployment compensation, his statements being to the effect that he was offering himself continually for employment during the period for which he obtained unemployment compensation and that he was able to do the work for which he offered himself. On the witness stand in this case he claimed to the jury, obviously for the purpose of proving one element of damages, that he was laid up and incapable of working during the period covered by his compensation. His contradictory statements make his testimony unreliable.
Further, plaintiff's testimony that he stood where traffic might hit him on the paved portion of the street for no purpose other than looking east for nonexistent traffic where he had a clear view for a quarter of a mile, while plaintiff's car traveled two blocks, is such a statement as to indicate that he was drunk and didn't know what he actually was doing, and that he has no real recollection of what happened.
The defendant Kathryn Probelske has been employed by the bureau of social aid of the State of Michigan about six years and is a graduate of Michigan State College. It is the undisputed testimony that defendant had complete control of her car. Defendant's husband sat beside her, and defendant's brother-in-law sat on the extreme right of the front seat with his wife, defendant's sister, sitting in his lap. Defendant had sufficient room to exercise her control over the car.
Defendant had been driving about 25 miles an hour as she neared the scene of the accident and slowed down before passing Rowe's gasoline station, and plaintiff in his testimony said that she was not driving too fast. Defendant testified a westbound car was about to pass her, for which car she dimmed her lights and as the two cars were about to pass, plaintiff suddenly appeared, coming from the northerly *Page 193 half of the pavement and immediately in front of the westbound car with his head well forward, lunging (or was thrown by the westbound car) suddenly into contact with the left front headlight of defendant's car and proceeded southerly, sliding evidently along the bumper of defendant's car, rolled over and stopped at a point where the major portion of his body was off the pavement but some of his body still on the pavement on the southerly side of the paved portion of the street. Defendant stopped her car immediately, her car did not run over the body of plaintiff, and after her car had come to a stop, she drove her car forward onto the shoulder of the road to be out of the way of traffic. Defendant and the parties in the car hailed another passing car, which took plaintiff to the hospital.
Witness Edward Probelske, the husband of defendant, a salesman for Investors Syndicate, was seated in the middle of the seat and beside his wife as she was driving. He testified that just previous to the accident his wife was driving 15 to 20 miles an hour and she had slowed up at the intersection of Zinn street because there were cars parked in front of the tavern and people were coming out at that hour, and that as defendant's car had passed from Zinn street and had gotten almost to the center of the block, a car was coming westbound. He further testified that as the westbound car passed defendant's car, plaintiff "fell right over the line. He had great force behind it and slid along our front bumper onto the south shoulder of the road," and that the defendant's car came to rest about a car length from where the plaintiff was lying. As the plaintiff was lying on the shoulder of the road and his foot or feet touching the concrete, witness had a conversation with plaintiff and asked plaintiff if he was hurt. Plaintiff said, "No, I want to go home." After plaintiff was taken to the hospital, *Page 194 witness saw him there and remained there until almost 4 o'clock in the morning. Witness further testified, "He [plaintiff] told my wife to go home, it wasn't her fault, that he would be all right."
Lucille Probelske, wife of Clarence Probelske, was riding in defendant's car and seated on her husband's lap at the time of the occurrence of the accident. She testified:
"We just passed the Silver Dime Tavern and just getting right alongside of the vacant lot when a car was ready to pass us and just as the car was passing us a man, I wouldn't say he stepped, he more fell in front of our car. That's all I saw of the accident. That was the first time I saw Mr. Kurta, just as he was ready to go over the center line of the road."
The other occupant of the car, Clarence Probelske, was looking to the right just before the accident and was therefore unable to give testimony directly on the question of how the accident happened.
The testimony given by defendant's witnesses offers a reasonable explanation for the undisputed fact that the body of plaintiff was on the south side of the pavement after the accident was over, without his having been run over by defendant's car.
Without his own testimony as to how the accident happened, plaintiff had no case to go to the jury. His testimony is contradicted by his own written statement; his credibility as a witness is weakened by his false claim of inability to work after the accident happened. Logically considered, the physical facts show the high improbability of plaintiff's account of the accident, even without taking into consideration the testimony of the unimpeached witnesses who testify to a contrary effect. We are of the opinion that the weight of the testimony clearly preponderates against plaintiff's claim. *Page 195
The trial court erred in not granting a new trial. The case should be remanded to the trial court with instructions to set aside the verdict and judgment and order a new trial, costs to await the result of the trial.