Kaiser v. Gooden , 325 Mich. 521 ( 1949 )

Although there is testimony in the case in behalf of the defendant to the effect that, as stated in Justice BUSHNELL'S opinion, plaintiff darted "into the path of Gooden's (defendant's) automobile at a time when it was so close to him that Gooden was powerless to prevent the accident," to adopt that version is to accept the evidence most favorable to defendant and reject evidence and reasonable inferences therefrom favorable to plaintiff. This being an appeal from a judgment for defendantnon obstante veredicto, based on a holding by the trial court that the defendant was free from negligence as a matter of law, the evidence must be viewed in the light most favorable to plaintiff. So viewed, the record discloses the following: Defendant's view of the 5-year-old plaintiff was clear and unobstructed and defendant first saw him 150 or 200 feet distant standing on the shoulder of the road 4 feet north of the north edge of and with his back toward the pavement; defendant was traveling 35 to 45 miles per hour about 2 feet south of the north edge of the pavement. A witness testified that her small daughter was at that time mailing a letter in a mailbox on the south side of the highway; that immediately after the accident defendant admitted that he was looking at this little girl south of the pavement and that when he looked back the plaintiff was in front of him. Defendant testified that as soon as he saw plaintiff move, not quite 10 feet away, he, the defendant, applied his brakes just before he hit plaintiff and that he brought his automobile down from 35 or 40 miles per hour to a stop within 20 to 25 feet. Plaintiff was at the center of the 22-feet-wide pavement when struck by the front of defendant's automobile. Applicable here is the following from Anderson v. Kearly,312 Mich. 566:

"In Brown v. Arnold, 303 Mich. 616, 623, we said:

"``The facts we have recited were established by the testimony, and we have repeatedly held that a jury may draw reasonable and legitimate inferences from established facts. Negligence may be inferred from the facts and circumstances. Physical facts may justify a jury finding that defendant is guilty of negligence.Faustman v. Hewitt, 274 Mich. 458; Trent v. PontiacTransportation Co., Inc., 281 Mich. 586. Negligence may be inferred from circumstances which place the case within the field of legitimate inferences from established facts. Fish v.Railway, 275 Mich. 718.'

"Having in mind that upon a motion to direct a verdict against plaintiff, the testimony and all legitimate inferences which may be drawn from it most favorable to plaintiff must be accepted, we are of the opinion that plaintiff established a prima facie case."

The physical facts from which the jury might "draw reasonable and legitimate inferences" and from which defendant's negligence might properly be inferred are that while the small boy plaintiff turned around to face the pavement and thereafter traversed 4 feet of the shoulder and 11 feet of the pavement, a total of 15 feet, before being struck, defendant was traveling such distance as a speed of from 35 to 45 miles per hour would propel his automobile forward during that period of time. Defendant was able to and did stop his automobile in from 20 to 25 feet. Was it unreasonable for the jury to infer that defendant was considerably more than that stopping distance back from the point of impact when first he would have been able to see plaintiff move had the defendant been looking? And yet defendant says he first saw plaintiff moving when he was only 10 feet away. Whether defendant saw the infant plaintiff move toward and on to the pavement and took steps to avoid the accident as soon as an ordinarily careful and prudent person would have done under like circumstances was a question of fact for the jury. If he failed to do so, he was, in fact, guilty of negligence. Whether the accident could have and would have been averted had defendant acted in those respects as an ordinarily careful and prudent person would have done under like circumstances was also a question of fact for the jury, bearing on proximate cause. There was evidence in the case of physical facts from which the jury could reasonably and legitimately have inferred that defendant was guilty of negligence which was a proximate cause of the accident.

In Braxton v. Gazdecki, 255 Mich. 518, cited by Justice BUSHNELL, this Court affirmed the finding of the trial court, sitting as a trier of the facts without a jury, that defendant was not, as a matter of fact guilty of negligence. Our holding was, in effect, that the evidence did not preponderate against such finding of fact. In so holding this Court did not have occasion to, nor did it pass on the question of whether defendant should have been held to be free from negligence as a matter of law. The case is, therefore, not authority for such holding in the case at bar. Colvaruso's Guardian v. Stroh Brewery Co.,301 Mich. 245, and Foster v. Rinz, 202 Mich. 601, are not in point for the reason that in those cases there was no testimony that the defendants were negligent in any respect nor were physical facts established, as in the instant case, from which such negligence could have been inferred.

The judgment non obstante veredicto should be reversed and set aside and the cause remanded for entry of judgment on the verdict for plaintiff. Costs of both courts to plaintiff.

SHARPE, C.J., and BOYLES and CARR, JJ., concurred with DETHMERS, J.