Gladys Ennes brought suit against John Dunham to recover for injuries sustained in an automobile accident on August 16, 1931. Plaintiff claims that she was a guest passenger in a Pontiac car, which was being carefully driven in a westerly direction on the northerly side of Michigan State trunk line No. 28 in Houghton county; that a Ford car, coming from the opposite direction and driven by Willis C. Medlyn on the north or wrong side of the road collided with the Pontiac car in such a manner as to slightly damage the Pontiac, but not to cause any injury whatsoever to its occupants; that almost immediately thereafter a Buick car, driven by the 15-year old son of defendant Dunham immediately in the rear of the Ford car and also on the north or wrong side of the road, struck the Pontiac with such force that plaintiff was badly hurt. The case was dismissed as to Willis C. Medlyn, who had been made a co-defendant with Dunham. Plaintiff alleges that defendant drove his car at a dangerous and excessive rate of speed, greater than would permit him to bring it to a stop within the assured clear distance ahead, on the left or wrong side of the road, etc. It is unnecessary for the purpose of this decision to discuss the details of *Page 618 the accident. Plaintiff recovered a judgment for $6,250.
Defendant claims on appeal that the verdict was against the great weight of the evidence. In the brief filed on his behalf, it is conceded that the evidence as to the respective positions of the three automobiles on the highway at the time of the two collisions, a large factor in the determination of defendant's liability, is closely in conflict. When the evidence is closely in conflict, it cannot be said that a determination by the jury in favor of either side is against the great weight of the testimony. The jury has had the advantage of seeing and hearing the witnesses. An examination of the record shows that there is sufficient evidence to sustain a verdict in plaintiff's favor.
Defendant claims that the verdict of $6,250 is excessive. Plaintiff is a married woman, whose age or condition prior to the accident was not shown. Although she sustained no fractures, she did suffer severe bruises in the accident. She received no immediate medical attention but was taken to a doctor's office the following afternoon. Plaintiff claims that for more than three weeks after the collision she had difficulty in lying down and suffered severe pains, and then continuous dull pain up to the time of the trial, 21 months later. She also claims that she has difficulty in moving her arm and that she suffers continually from a dull pain in her shoulder, which tires easily. Her symptoms are almost entirely subjective. A doctor testified that there was still a 25 per cent. immobilization of the arm and that this disability would be permanent. This statement is however modified by his other statement to the effect that the disability would continue for two years more. We need not determine whether the *Page 619 verdict is excessive or not on the present record, which fails to give us fully the facts, for the case must be sent back for a new trial on another ground, the reversible error in the trial judge's charge to the jury.
We would approve of this charge, had not the trial judge inadvertently made a statement which cannot be overlooked. He instructed the jury that the fact the defendant had a larger number of witnesses than plaintiff was not of itself determinative, if the jury believed that plaintiff's witnesses had correctly stated the facts, while those of defendant were mistaken. He also instructed them that plaintiff must make out her case by a preponderance of evidence. He then pictured a pair of scales evenly balanced, on each side of which the respective testimony of plaintiff and defendant was to be placed, and the testimony thus weighed. Immediately thereafter he stated:
"That's all we mean by fair preponderance of evidence, which is a fair weight of the evidence. We do not necessarily mean, although it might be so, although we do not necessarily mean, that the preponderance of evidence lies on the side of the party offering the most witnesses, but we mean rather that under all the testimony in the case the probability of the truth lies on the side of the party having the affirmative, which party is the plaintiff, of course, in this case on these issues."
This part of the charge is obviously incorrect. The verdict depended largely upon the weight to be given by the jury to the statements of the witnesses of the respective parties. The only inference that can be drawn from the judge's charge is that the probability of proof was with the plaintiff, who made the affirmative showing, rather than that she *Page 620 had the burden of proof in making out her case. This is reversible error, which we do not believe was corrected by anything subsequently said.
Even if there be any merit in the other claims of error, they will not arise on a new trial.
The judgment is reversed, with costs to defendant and a new trial ordered.
POTTER, NORTH, FEAD, WIEST, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with BUTZEL, J.