Dewitt v. Gerard

Plaintiff reviews directed verdict and judgment for defendant city.

Taking the testimony most favorable to plaintiff, it appears that as he was about to cross Woodward avenue in Detroit, going east, he looked to the north and saw no cars approaching within dangerous distance; he crossed to the center of the avenue and reached a point between the two lines of streetcar tracks; he stopped and retreated a step or two because of traffic coming from the south; he was struck by an automobile coming from the north driven by defendant Gerard, thrown over the fender of the car and rendered unconscious; he lay close to or partly upon the streetcar track, on his left side; a Detroit city streetcar coming from the north struck him, moved him a few feet and, when it stopped, his head and part of his body were under the center of the car, tightly wedged in.

The testimony presented a jury question as to the liability of Gerard but the court directed a verdict in favor of defendant city upon the authority of Frye v. City of Detroit,256 Mich. 466, on the ground that plaintiff had failed to show injuries attributable to the streetcar. Thereupon plaintiff entered a nonsuit as to defendant Gerard. Unless the Frye Case prevents, the testimony made a case for the jury against the city.

The automobile struck plaintiff at his left hip. His physical injuries were a cut on the left side of the forehead, a cut on the right ear, bruises all over the body and skin abrasions on his face and hands. And, in addition, his right thumb was broken in two places, his left shoulder pained him and his head ached.

A witness who saw plaintiff as he lay on the pavement on his left side after he was struck by the automobile testified that he saw no blood but that as he lay under the streetcar his face was a "mass of blood."

In the Frye Case the cause of action was for a specific injury — death. Recovery was denied because the testimony did not show circumstances from which could be drawn a reasonable inference that the streetcar had caused or contributed to the death.

Here, there is a fair inference that the streetcar caused some of plaintiff's injuries, at least some of those resulting in blood on the face and hands. Fair argument may be made as to cause of some of the other injuries. It is not necessary that plaintiff shall account exactly and specifically for all of his hurts but he is entitled to compensation for those shown by a preponderance of the evidence to have been caused by the negligence of defendant city.

Reversed, with new trial and costs.

NORTH, C.J., and BUTZEL, BUSHNELL, EDWARD M. SHARPE, and POTTER, JJ., concurred with FEAD, J.