Benedict v. Rinna , 257 Mich. 349 ( 1932 )

Plaintiff, who at the time of the injury complained of was less than six years old, brought suit against defendant to recover damages for injuries alleged to have been suffered by reason of defendant's negligent operation of a motor truck. The negligence complained of was driving at an excessive rate of speed without having the motor vehicle under proper control, failure to give warning of its approach, driving it too close to the curb, and failing to operate it with that due care and caution required for the safety of others. From a verdict directed for defendant, plaintiff appeals.

Defendant owned a grocery store in Detroit. On the day of plaintiff's injury he drove the delivery truck and delivered groceries to the home of plaintiff's parents. He stopped his delivery truck in front of the house and delivered the groceries in the house. Plaintiff and his brother, who was a little older than he, were playing on the sidewalk when defendant went into the house. When he came out they were still there. Defendant went around to the left side of the truck, got in and drove away. He says he did not know of plaintiff's injury until afterward; that he went at once, after learning of plaintiff's injury, to the house to see him. He testified, on cross-examination, that at that time plaintiff's brother told him plaintiff was injured because he put his foot under the wheel of the truck. On the trial, plaintiff's brother testified he did not see defendant's truck run over plaintiff; that the first he saw plaintiff after he was injured, he was on the sidewalk crying; that he did not know anything about how he was injured, though he admits he told defendant how the injury occurred. A fair inference from all his testimony is he did not see the accident and does not know how plaintiff was injured. Plaintiff testified in his own behalf that he did not remember what happened, did not know how he was hurt, and did not claim defendant's truck ran over him. Plaintiff's father testified he could not find out how plaintiff was injured. Several physicians testified to the extent of plaintiff's injury. The trial court directed a verdict for defendant.

It is well settled that the burden of proof was upon the plaintiff to show his injuries resulted from defendant's negligence. It is admitted plaintiff was injured in some way. There is no proof from which defendant's negligence may be legitimately inferred. The question of plaintiff's contributory negligence was not involved, he being but five years and eight months old at the time of the injury. Johnson v. City of BayCity, 164 Mich. 251 (Ann. Cas. 1912 B, 866); Beno v. Kloka,211 Mich. 116; Easton v. Medema, 246 Mich. 130;Edgerton v. Lynch, 255 Mich. 456.

We think the court arrived at a correct conclusion, and judgment is affirmed, with costs.

CLARK, C.J., and McDONALD, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.