Gardiner v. Studebaker Corp. ( 1918 )

Fellows, J.

From this record it appears that defendant has at least two plants in the city of Detroit. The distance between them is five or six miles. It transports material from one to the other by auto trucks, which have trailers attached to them. The usual route taken passes along McGraw avenue, an east and west street, said to be 26 or 28 feet wide from curb to curb at the place of the accident herein involved. Plaintiff’s decedent, a little girl lacking one week of being four years old, was so seriously injured by one of these trucks that she died within a few hours. The declaration in this action brought by plaintiff, father of deceased, as administrator, under the “survival act,” counts upon the negligence of defendant as the proximate cause of her death. Upon the trial plaintiff called as an adverse witness under the statute the driver and cross-examined him at length. He testified that the accident occurred about half past 10 in the forenoon; that he was going from plant No. 1 to plant No. 3 with a load of automobile tops, proceeding west on McGraw. The truck consisted of a new six-cylinder Studebaker without the touring body, upon which the trailer attachment was placed; the trailer was about 20 feet long and was somewhat wider than the automobile proper. He testifies that he was going from 8 to 10 — 10 to 12 miles an hour; that he was on the right (north) side of the street; that he proceeded across Linwood avenue; that the little girl came out from behind a vehicle, variously called in the record a “mud wagon,” a “mud hack,” a “dump wagon”; that she came from the south; that he sounded his horn., applied his brakes, turned his machine to the right; that “she kept running right in”; that he reached out and pushed her back from the machine. Subsequent events tend to show that she was run over by the trailer. He testifies that but- for the dump wagon he would have seen the child. There is no other testimony as to how the accident happened. There is testimony that there were tracks of the automobile wheels on the curb, but this tends to corroborate the driver’s testimony that he turned his machine to the right in attempting to avoid the accident, rather than to disprove it.

After the accident the driver was taken before the prosecuting attorney and interrogated in the presence of a stenographer. He was also called as a witness upon the coroner’s inquest. The stenographers’ transcripts were offered in evidence. They are not incorporated in the bill of exceptions, but defendant’s counsel conceded they do not show any statement by the witness with reference to the dump wagon. Plaintiff’s counsel argues from this that the credibility of this witness was for the jury; that there arose a question of fact for the jury to determine; that the trial court erred in not submitting such question of fact to the jury and in holding that there was no testimony controverting the testimony of the driver as to the manner in which the accident happened. The difficulty with counsel’s contention and its availability to work a reversal of the case lies in the fact that there is no evidence in the case, either direct or circumstantial, that the accident happened in any other way than as testified by this witness. If plaintiff had introduced evidence showing or tending to show negligence, or had established facts from which an inference of negligence might be legitimately drawn, then the credibility of this testimony and the weight to be given it would be for the jury. But the happening of the accident alone is not evidence of negligence of the defendant sufficient to take that question to the jury. And. unless there was some evidence, either direct or circumstantial, that defendant’s negligence was the proximate cause of the death of decedent, a case was not made for the jury. If we should follow counsel’s contention to its logical conclusion, it would result that by calling an adverse witness under the statute and then producing evidence discrediting him, without any affirmative evidence of negligence, either direct or circumstantial, a case for the jury would be made out. We cannot subscribe to such a doctrine. The plaintiff is bound to prove his cause of action. He must make a prima facie case of negligence of the defendant before he is entitled to take the judgment of the jury. In the instant case he failed to do this. The defendant’s truck was on the right side of the street; there is no evidence of any defect in the brake; no evidence that the driver was exceeding the limit of speed prescribed by the statute or by any ordinance of the city of Detroit; no evidence that the driver did or failed to do anything which produced or would have prevented the accident. The case is clearly distinguishable from Winckowski v. Dodge, 183 Mich. 303, and quite like Barger v. Bissell, 188 Mich. 366. We may well dispose of this case with the concluding portion of the opinion in, that case.

“Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.

“A careful consideration of the record in this case leads to the conclusion that this unfortunate accident occurred as the result of an emergency on the highway which arose through no fault of the driver, and that his conduct, under the circumstances disclosed by the evidence, raises no inference of actionable negligence which makes out a prima facie case.”

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.