The evening of January 4, 1936, plaintiff's and defendant's automobiles approached one another, each on its proper side of the center line of a paved highway but, in passing, there was a collision between the left front of defendant's car and the left rear side of plaintiff's.
Plaintiff claims that defendant's car, after passing the front of his car, turned to the left and caused the collision.
Defendant claims that, as he passed the front of plaintiff's car, the rear of that car slued into the pathway of his car, and that caused the collision.
The issues were tried before the court, and a finding made that defendant was guilty of negligence and there was "no evidence whatever of negligence on the part of plaintiff, and the contact not being *Page 211 with the front of plaintiff's car, but with his rear, the court finds for the plaintiff."
Presumably the court thought the statute, 1 Comp. Laws 1929, § 4788, helpful in determining fault. That statute creates aprima facie presumption of negligence where one vehicle overtakes and strikes the rear end of another vehicle proceeding in the same direction.
In the instance at bar the vehicles were traveling in opposite directions and there was no rear-end collision and no presumption of negligence.
The finding of "no evidence whatever of negligence on the part of plaintiff" was not equivalent to an affirmative finding that plaintiff was free from contributory negligence, and leaves that finding subject to the criticism of counsel for defendant that the court entertained the view that the burden was on defendant to make a showing on that subject.
The plaintiff had the burden of establishing the alleged negligence of defendant and his own freedom from contributory negligence. This is too elementary to require citation of authority.
The pavement was narrow, but wide enough to afford clearance of the cars if on the proper sides of the center line.
Defendant claims that it was snowing and there was slush upon the pavement; while plaintiff claims the pavement was only wet from snow melting as it fell.
Each driver saw the approach of the other and agree that each one was on his proper side of the center line of the pavement when the fronts of the cars came opposite one another. From that point they disagreed, plaintiff claiming that his car continued its straight course, and defendant's car turned into collision with the rear side thereof; while defendant *Page 212 claims that his car continued in its straight course but the rear of plaintiff's car slued across the center line of the pavement and into the pathway of his car and caused the collision. The claims of both parties have supporting evidence.
Avis Larsen, a school teacher, arrived at the scene of the accident right after the happening thereof and testified that marks in the slush showed that the rear wheels of plaintiff's car slued across the center line of the pavement.
The trial judge gave little weight to her testimony, because she was acquainted with defendant and, she "saw what she saw under the direction of the defendant," and her testimony "that there was slush on the pavement, and car tracks in the slush" was "directly denied not only by the plaintiff, but by Mr. Walker."
Miss Larsen's testimony, of course, was not controlling but had bearing upon the issue of the preponderance of the evidence.
Plaintiff, to have recovery, was required to show, by a preponderance of the evidence, that the collision was occasioned by the negligence of defendant and, upon review, where trial was without a jury, and the point is presented, we must determine whether the judgment is supported by a preponderance of the evidence.
In the case at bar the alleged negligence of defendant was not established by a preponderance of the evidence, and the judgment should be reversed, without a new trial, and with costs of both courts to defendant.
*Page 213CHANDLER and NORTH, JJ., concurred with WIEST, C.J.