Opinion
Docket No. 6,564.
Decided November 26, 1969.
Appeal from Lenawee, Rex B. Martin, J. Submitted Division 2 November 7, 1969, at Detroit. (Docket No. 6,564.) Decided November 26, 1969.
Complaint by William P. Hickey, Sr., for himself and as next friend of William P. Hickey, Jr., against Bradley Lynn Kaser and Howard O. Kaser for injuries resulting from a motorcycle-automobile accident. Judgment for defendants. Plaintiffs appeal. Affirmed.
William P. Hickey, Sr., in propria persona. Aloysius B. O'Mara, for defendant.
Before: LESINSKI, C.J., and HOLBROOK and QUINN, JJ.
Plaintiffs, father and son, instituted this automobile negligence action to recover damages for personal injury. The basis of the suit is an accident involving a motorcycle driven by plaintiff-son and defendant's automobile. The trial court, after listening to the testimony and weighing the evidence, returned a no cause of action judgment against the plaintiff-son, based upon contributory negligence, and also a `no cause' in the plaintiff-father's action because of the contributory negligence of the son. From this decision, both plaintiffs appeal.
The issues to be determined on appeal are as follows:
(1) Was there sufficient evidence to support the trial court's finding of fact that plaintiff-son was guilty of contributory negligence?
(2) Was the plaintiff-father's action for injuries to his son barred by his son's contributory negligence?
(1) Whether the plaintiff-son was negligent and whether such negligence was a contributing cause of the alleged accident and injury is a question of fact. (9 Callaghan's Michigan Pleading Practice, § 65.76, p 305). Ingram v. Henry (1964), 373 Mich. 453; Kevreson v. Michigan Consolidated Gas Company (1965), 374 Mich. 465; Ketola v. Frost (1965), 375 Mich. 266; Houck v. Snyder (1965), 375 Mich. 392.
The trial court made the following findings:
"I think the plaintiff almost made it in safety [motorcycle-left turn], but I think his negligence in judging the defendant's distance, his negligence in failing to judge the defendant's speed, his failure to take a second look, his failure to signal, were still continuing acts of negligence, and he is guilty of contributory negligence."
The record indicates that the due care failings on the part of the plaintiff-son, coupled with the totality of circumstances leading to the accident, support the conclusions of the trial judge. We do not substitute our judgment on questions of fact unless they clearly preponderate in the opposite direction. Leonard v. Hey (1934), 269 Mich. 491; Jones v. Eastern Michigan Motorbuses (1939), 287 Mich. 619.
(2) The law in Michigan is well settled regarding a father's action for his damages sustained as a result of his son being injured in an automobile accident. When the main action of the son fails, the derivative action of the father must also fail. Arritt v. Fisher (1938), 286 Mich. 419; Kobmann v. Ross (1965), 374 Mich. 678; Simerka v. Pridemore (1968), 380 Mich. 250; Dewey v. Perkins (1940), 295 Mich. 611; Bias v. Ausbury (1963), 369 Mich. 378; Snider v. Jennings (1968), 11 Mich. App. 562, 563; Broitman v. Kohn (1969), 16 Mich. App. 400; Toy v. Monticello House, Inc. (1969), 17 Mich. App. 360.
Affirmed. Costs to defendants.