Brown v. Tanner

Plaintiff, an infant suing by his next friend, at about the hour of 6:35 p. m. on the evening of September 30, 1935, was riding his bicycle north on Lapeer street in the city of Flint. Lapeer street is approximately 30 feet in width and is intersected by Belmont street which is slightly narrower and runs east and west.

Plaintiff was propelling his bicycle an estimated distance of two feet east of the east line of Lapeer street and as he entered the intersection of Lapeer and Belmont, defendant approached from the north on Lapeer in his automobile. The record does not speak with force as to the exact point of impact but it is apparent that plaintiff was struck by defendant's car after he (plaintiff) had crossed north of the center line of Belmont street, defendant at the time attempting to turn to the left on to Belmont. In making said turn defendant failed to comply with the provisions of 1 Comp. Laws 1929, § 4710. Neither did he sound his horn nor signal his intention to turn. On the other hand, plaintiff's bicycle was not equipped with a light. 1. Comp. Laws 1929, § 4736, as amended by Act No. 64, Pub. Acts 1931.

At the time of the accident the pavement was dry, the intersection was well lighted and the visibility good. Neither plaintiff nor defendant saw each other prior to the impact.

Plaintiff appeals from a judgment non obstante veredicto.

The opinion of the trial court denies plaintiff recovery for his injuries for the stated reason that he was guilty of contributory negligence in that he failed to see defendant's car and on the further ground that he was violating the provisions of the statute in operating his bicycle without the required light.

Plaintiff was proceeding upon the street in a place where he had a lawful right to be. The intersection was well lighted and there were no vehicles present in the immediate vicinity other than defendant's car. Although plaintiff could undoubtedly have seen defendant had he looked we are unable to say that he was guilty of contributory negligence as a matter of law for his failure to do so. Even had he looked and seen defendant he would not have been bound to anticipate that the latter would turn to the left before reaching the center of the intersection and strike plaintiff at the point where the accident occurred. Whether or not plaintiff was guilty of contributory negligence on this point was a question for the jury under all the facts and circumstances. See Reed v. Martin, 160 Mich. 253; Black v.Parke Davis Co., 211 Mich. 274; Essenberg v. Achterhof,255 Mich. 55.

We are also of the opinion that it was a question for the jury to determine if plaintiff's failure to comply with the provisions of the statute requiring his bicycle to be equipped with a light was a contributing cause of the accident.Beebe v. Hannett, 224 Mich. 88; Gleason v. Lowe, 232 Mich. 300.

Reversed and remanded for entry of judgment on the verdict, with costs to plaintiff.

FEAD, C.J., and NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, and POTTER, JJ., concurred.