Hinchey v. J. P. Burroughs & Son

I am of the opinion that the questions of defendant's negligence and the deceased's contributory negligence were questions for the jury.

Defendant's Negligence. Defendant admitted that the truck was traveling 17 or 18 miles an hour on a residence street in the city of Flint. As this accident occurred in 1924, this was an admission that it was guilty of negligence per se. Westover v.Railway Co., 180 Mich. 373; Levyn v. Koppin, 183 Mich. 232.

Defendant also admitted that he could not have stopped his car within the range of his lights. This was an admission of negligence. Spencer v. Taylor, 219 Mich. 110. In that case the court said in part:

"We think the court was right in holding plaintiff guilty of contributory negligence as a matter of law. It is well settled that it is negligence, as a matter of law, to drive an automobile along a public highway in the dark at such a speed that it cannot be stopped within the distance that objects can be seen ahead of it;" citing authorities.

It was for the jury to say whether these acts of negligence were the proximate cause of the accident. It was likewise a question for them whether the operation of the truck was negligent.

Deceased's Negligence. No one saw the movements of deceased up to the time he was within one foot of defendant's truck. Up to that time no presumptions of negligence on his part can be indulged. We must Presume that he was in the exercise of due care. Gilbert v. Railroad Co., 161 Mich. 73; Richardson v.Railway Co., 176 Mich. 413. Starting then at that moment, what did the deceased do after that which leads to the conclusion that he was guilty of contributory negligence? There is nothing except that he was in collision with defendant's truck. Can we say, as a matter of law, that deceased was responsible in whole or in part for the collision, and defendant was not wholly to blame, when it has admitted its negligence in two respects? If defendant were guilty of negligence in two respects, is not that some evidence that deceased was not responsible for his own injuries? Are we going to say that deceased was guilty of contributory negligence, as a matter of law, because no reasonable man would attempt to cross a 24-foot pavement at night, when there was little or no traffic, with a pail of water in his hand? If not, what did he do to make him guilty of contributory negligence? We ought not to charge a man, whose lips have been closed in death, with contributory negligence unless we can point out what act or acts made him so. Amley v.Saginaw Milling Co., 195 Mich. 189, and Tuttle v.Briscoe Manfg Co., 190 Mich. 22, are instructive cases on this question.

The recent case of Petersen v. Lundin, 236 Mich. 590, is very much in point. Petersen attempted to cross Stephenson avenue in the city of Menominee. It was after dark on the 10th day of November, 1924. It had been raining and there was some fog. Before Petersen reached the opposite side of the street he was struck by Lundin's automobile and injured so badly that he lived only four hours. No one saw the accident except the driver, and he did not see him until about the time he struck him. The trial court submitted the question of Petersen's contributory negligence to the jury and his action was affirmed by this court. Mr. Justice WIEST, in the course of his opinion, said in part:

"Defendant was the only eyewitness of the accident and was called by plaintiff for cross-examination under the statute. It is claimed that his testimony established contributory negligence on the part of Mr. Petersen. In behalf of defendant it is said that the presumption of care allowed by law in cases where there are no eyewitnesses cannot be indulged because defendant was an eyewitness and his testimony established want of care on the part of Mr. Petersen. Defendant's testimony was limited to a view of decedent at the very moment he was in front of the automobile and just as he was struck. Defendant did not see decedent before he was in front of the automobile, and the case is barren of witness evidence of what care decedent exercised before he got in the path of the automobile. The fact decedent was in a place of danger did not require a finding of want of care, for this would make the happening of the accident evidence of contributory negligence on his part, and this can no more be done with reference to contributory negligence than it can upon the question of defendant's negligence. The care required of Mr. Petersen was exercised or not as he approached the path of the automobile and at such point defendant did not see him. In the absence of testimony showing the actions of Mr. Petersen as he approached the path of the oncoming automobile, the law permitted the presumption of due care on his part to carry the issue to the jury. This being true, the court was not in error in instructing the jury that they should assume Mr. Petersen saw the automobile. Such instruction was no more than the application of the presumption that Mr. Petersen was exercising due care.

"The ruling asked in behalf of defendant would, in effect, make a pedestrian guilty of negligence as a matter of law if he so conducted himself as to get into the path of an automobile. On a dark, misty night the distance automobile lights are away is somewhat deceptive, and also the speed of an automobile. Persons do get in the path of automobiles even while exercising due care. There is no rule of law requiring a pedestrian to rivet his eyes on an approaching automobile. He should look but if, having looked, it appears safe to cross, he may proceed, and his care is not to be determined solely by the fact he was struck and was not at that second looking at the automobile."

The judgment of the trial court is reversed, and a new trial granted, with costs to plaintiff.

SHARPE, C.J., and STEERE and McDONALD, JJ., concurred with BIRD, J.

WIEST, J. Under the authority of Petersen v. Lundin,236 Mich. 590, I concur in the opinion of Mr. Justice BIRD for reversal.