GOLDBERG
v.
KOPPY TOOL & DIE CO.
Docket No. 40, Calendar No. 49,052.
Supreme Court of Michigan.
Decided March 15, 1962.Goldman & Grabow (David F. Caplan, of counsel), for plaintiff.
George Belitsos (John C. Quillinan, of counsel), for defendants.
SOURIS, J.
Defendants claim reversible error was committed by the trial court in failing to grant their *471 motion for directed verdict made at the conclusion of plaintiff's proofs and in denying their motion for judgment non obstante veredicto made after jury verdict was rendered for plaintiff.
Plaintiff and Mrs. Koppy, driving a new car owned by the defendant Koppy Tool & Die Co., were starting their second day of a journey to Florida. As they approached Nashville, Tennessee, in the right-hand lane of a 4-lane paved highway during a rain, Mrs. Goldberg warned Mrs. Koppy, who was driving, that she had better stop the car because a car ahead of them had stopped behind a stopped school bus. The Koppy car failed to stop and a rear-end collision with the motionless car ahead occurred, resulting in severe injuries to plaintiff.
Mrs. Goldberg testified that the Koppy car had ample room within which to stop after her warning, that it neither swerved to the vacant left lane nor to the right, that the rain did not limit visibility, and that she did not know what the car's speed was immediately before the collision. She also testified that on several occasions during the second day of the trip, before the accident, she requested Mrs. Koppy to slow down because of the rain. During the course of her cross-examination she testified she did not know whether or not Mrs. Koppy attempted to apply her brakes "because I was looking straight ahead. I couldn't see the car ahead and see what she was doing with her feet at the same time." Counsel for defendants then read portions of Mrs. Goldberg's pretrial testimony taken by deposition in which she had said that Mrs. Koppy did "attempt to stop" and that she "imagined" Mrs. Koppy had applied her brakes, although she did not see Mrs. Koppy do so. She also said in that pretrial testimony that immediately after the accident she heard Mrs. Koppy tell others present at the scene that she *472 couldn't understand why the car did not stop when she applied the brakes.
The only other testimony offered by plaintiff related to her injuries. At the conclusion of plaintiff's proofs, defendants moved for a directed verdict, claiming plaintiff had failed to establish a prima facie case. The trial judge reserved decision,[1] defendants put in their proofs, and the trial judge ultimately denied the motion at the conclusion of trial.
Tennessee, where the collision occurred, does not have a statute, such as ours,[2] which provides that the driver of a vehicle colliding with another from the rear shall be deemed prima facie guilty of negligence. Consequently, in order to recover, plaintiff had the burden of proving common-law actionable negligence.[3] She was, of course, entitled to legitimate inferences in her favor from the facts she proved. We have held that where varying inferences legitimately may be drawn from established facts, that the duty of identifying such inferences rests upon the jury. Carver v. Detroit & Saline Plank Road Co., 61 Mich. 584, 592-594. See, also, Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, and Kaminski v. Grand Trunk Western R. Co., 347 Mich. 417. Carver further tells us that it is for the judge to determine whether inferences may be drawn legitimately from the facts established. What, then, are the inferences that a jury could draw legitimately from the facts established by plaintiff at the close of her proofs?
Her testimony, if the jury chose to believe it, was that she saw the danger ahead, and warned Mrs. *473 Koppy, in ample time to avoid collision. She could not testify whether Mrs. Koppy attempted to do so by applying her brakes because her attention was riveted to the impending crash ahead and she was not watching Mrs. Koppy's actions. She did know that Mrs. Koppy did not swerve to the left or to the right. We believe a fair inference the jury could draw from such testimony is that Mrs. Koppy was negligently inattentive to the visible danger ahead or to the warning given. They could also infer that Mrs. Koppy's reaction time was negligently slow. At least those inferences favorable to plaintiff could legitimately be drawn by a jury with nothing more before it than the testimony offered by her. The issue of defendants' negligence was properly for the jury. The trial judge did not err in failing to grant defendants' motions for directed verdict and for judgment non obstante veredicto.
Affirmed. Costs to plaintiff.
DETHMERS, C.J., and CARR, KELLY, BLACK, and KAVANAGH, JJ., concurred.
OTIS M. SMITH and ADAMS, JJ., took no part in the decision of this case.
NOTES
[1] Empson act, CL 1948, § 691.691 et seq. (Stat Ann 1959 Cum Supp § 27.146] et seq.).
[2] CLS 1956, § 257.402 (Stat Ann 1960 Rev § 9.2102).
[3] The case was tried on the theory that plaintiff was a guest passenger. Tennessee does not have a guest passenger statute similar to CLS 1956, § 257.401 (Stat Ann 1960 Rev § 9.2101).