Sadlowski v. Meeron ( 1927 )

Wiest, J.

(dissenting). This is a personal injury case. Plaintiff had verdict for $8,000. This was reduced by court order and remittitur to $5,000. Defendants review by writ of error.

We think plaintiff was guilty of contributory negligence, and the motions of defendants, for directed verdict on that ground, should have been granted.

. October 10, 1922, shortly after noon, plaintiff, then 11 years of age, was requested by defendant Fowler, driver of an automobile truck owned by defendants Meeron, Sedman, and Singer, doing business as the Wolverine Bottling Works, to signal traffic on Michigan avenue, city of Detroit, to enable the driver to back the truck from a side street onto Michigan avenue and thereby be in position to go east on that avenue. Plaintiff stepped from the sidewalk into the street back of the truck, and, seeing a wagon drawn by a team approaching 15 or 20 feet away, belonging to defendant Ferdinand Porath, held -up' one of his hands as a signal to the driver of the team to stop and with his other hand motioned the truck driver to keep on backing. The driver of the team did not obey the signal and the driver of the truck, not being able to see the boy, continued backing the truck. The boy faced the team with his back toward the truck. The team was walking and the truck was backing slowly, and the boy soon found himself between two approaching vehicles and recognized the danger of remaining there, but claims he did so because the truck driver had told him to stay in the street and he thought the team would stop. When the heads of the horses came within three or four feet of him, plaintiff endeavored to get out of the way, was struck in the jaw by the end of the wagon tongue and fell beneath the truck. The team stopped short of the truck and the truck did not strike or injure plaintiff. The wagon tongue broke plaintiff’s jaw and knocked out some of his teeth, and, it is claimed, occasioned an infection resulting in arresting his mental development.

For the purposes of decision we assume that both drivers were guilty of negligence. When plaintiff became aware of his peril he was yet in a position to avoid injury and should have removed himself from the point of danger. His only excuse for not doing so was the claimed direction by the track driver, given at a time when no danger was apparent, and he thought the team would stop. Plaintiff was old enough to be held to the duty of acting on his own promptings of what he should have done to avoid the danger, and it avails him nothing to say he remained when he knew he ought not to have done so because the track driver had stationed him to signal traffic. An instruction, given when there is no present danger, cannot free one from contributory negligence when danger becomes obvious, is recognized, way to safety is open, need to take safety action is prompted and not taken. Surely, defendant Porath’s claim of plaintiff’s contributory negligence is not at all met by an instruction given plaintiff by the truck driver. An instruction to go into the street and signal traffic was not equivalent to a direction to remain there in the face of apparent danger and not pass to safety when aware of need to do so. Even if the driver of the truck had directed plaintiff to remain in the street and face apparent danger it would not absolve plaintiff from contributory negligence if such was his reason for remaining after danger was recognized.

Other serious questions are presented, but, considering our view of the case, need not be considered.

We find no motion 'by defendants for judgment in their favor notwithstanding the verdict.

Plaintiff made no case and the judgment should be reversed without a new trial, with costs to defendants.

Fellows and Clark, JJ., concurred with WlEST, J.