Peck v. Hampel ( 1940 )

I am not in accord with the opinion of Mr. Justice McALLISTER. There were no eyewitnesses who testified to seeing the actual collision, but the pleadings alleged that decedent was crossing the intersection diagonally from the northwest corner to the southeast corner of the intersection. The answer filed by defendant admitted this allegation. Such action upon the part of decedent was in violation of ordinance No. 78, § 41, of the city of Big Rapids which reads as follows:

"All pedestrians crossing streets shall cross at intersection and on sidewalk line or within limits established by the chief of police."

The principal question in this case concerns the contributory negligence of decedent. Citation of authority is unnecessary to establish the principle that where there are no eyewitnesses to the death, the law will presume that decedent was in the exercise of ordinary care, but where there are eyewitnesse the presumption of due care on the part of decedent vanishes.

In Foote v. Huelster, 272 Mich. 194, we said:

"Where there is an eyewitness to an accident the issue of due care rests upon proof and not upon presumption. This is so even if the eyewitness is the adverse party."

In my opinion the defendant was an eyewitness to the accident. He was presumed to see what was there to be seen. The estate of decedent was not barred from taking the testimony of defendant. The representative of an estate may compel the living party to testify.^* Fox v. Barrett's Estate, 117 Mich. 162 . Moreover, the facts and circumstances surrounding the accident strongly indicate that decedent was not in the exercise of due care. Decedent was struck while walking diagonally across the intersection. The record establishes the fact that decedent was struck in the southeast quarter of the intersection about 18 feet north of the south side of Maple street and about 20 feet west of the east side of Third avenue. Decedent was in a place he should not have been. He was violating the city ordinance and this is evidence of negligence. Bade v. Nies, 239 Mich. 37.

The judgment is affirmed, with costs to defendant.

CHANDLER, NORTH, WIEST, and BUTZEL, JJ., concurred with SHARPE, J.

^* See 3 Comp. Laws 1929, § 14220 (Stat. Ann. § 27.915). — REPORTER.