Kemp v. Aldrich

^* See opinion on rehearing, post, 715. — REPORTER. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The opinion written by Mr. Justice SHARPE requires a reversal of the judgment and a new trial because the trial judge included in his charge a quotation from the reckless driving statute, 1 Comp. Laws 1929, § 4696 (Stat. Ann. § 9.1564). However, immediately preceding this statement, the court properly instructed the jury on the subject of negligence.

It is unfortunate that the court's statement of the law of negligence should be followed by the quotation that appears in Mr. Justice SHARPE'S opinion because the criminal statute has no application in this suit. The court stated to the jury that, in effect, although the statutes of the State also provide that one who wilfully and wantonly disregards the rights of another, under certain conditions, shall be guilty of reckless driving, the plaintiff has not charged the defendants with such conduct. Under these circumstances, "after an examination of the entire cause," it does not "affirmatively appear that the error complained of has resulted in a miscarriage of justice." 3 Comp. Laws 1929, § 15518 (Stat. Ann. § 27.2618).

Appellants argue that plaintiff was guilty of contributory negligence, as a matter of law, in entering a one-way traffic lane made through snowbanks on a main-traveled road and in walking in the center of the highway in a blinding snowstorm.

Because of a heavy snowfall the road had been used for travel by other pedestrians and, even if plaintiff was the first to walk on the highway under these circumstances, nevertheless she had a perfect right to do so. Korstange v.Kroeze, 261 Mich. 298; Lapachin v.Standard Oil Co., 268 Mich. 477; Pearce v.Rodell, 283 Mich. 19. In the Pearce Case the court approved an instruction of a trial judge who said:

"Pedestrians upon the public highway have a right to assume in the first instance the driver of an automobile will use ordinary care and caution for the protection of pedestrians, nevertheless the pedestrian must not rest content on such assumption, if there comes a time where he knows, or ought to know by the exercise of reasonable care, he is being placed in danger. He must take such care for his own safety as a reasonable, careful, prudent person would do under similar circumstances."

Plaintiff had the right to assume that defendant's driver would give a warning signal and that she would not be injured while using the highway. Reynolds v. Knowles,223 Mich. 70. Plaintiff testified that, as she was walking through the cut, which was 6 or 7 feet wide, she was looking ahead, although her face was turned somewhat toward the east to avoid the blinding snow. She said she did not see any lights or hear a horn and had no opportunity to step aside and get out of the way of defendant Shepard Co-Operative Association's truck. Whether she was guilty of contributory negligence under these circumstances was a question of fact and there was evidence to support the finding of the jury.

Defendant Aldrich's negligence was also a question of fact. The blinding snow interfered with his vision and he was required to use a high degree of care. It was his duty to drive so that he could stop within the assured clear distance ahead. 1 Comp. Laws 1929, § 4697 (Stat. Ann. § 9.1565);Bowmaster v. William H. DePree Co., 252 Mich. 505; Russell v. Szczawinski, 268 Mich. 112. Plaintiff testified that, after defendant Aldrich struck her, she was dragged a distance of 30 to 40 feet. Aldrich, on the other hand, testified that, upon entering the cut in the road, he reduced his speed to 4 or 5 miles per hour, turned on his headlights, maintained a look-out and, when he saw plaintiff, about six feet ahead, he put on his brakes and stopped his truck within four feet. This conflict in the testimony raised an issue of fact for the jury. Russell v.Szczawinski, supra.

Appellants contend that the trial court was in error in permitting the jury to examine the hand sled that plaintiff was drawing when she was struck, the sled having been repaired subsequent to the accident. We do not agree with appellants' contention that, because of its changed condition, the admission of such evidence was prejudicial to the defendants.

Plaintiff called Dr. DuBois and Dr. McArthur as witnesses. Appellants argue that it was improper for the court to strike the testimony of Dr. McArthur to the effect that plaintiff made no complaint of arthritis or pain in her knees or spine when he examined her a few days before the trial. The statement of the court was as follows:

"I think one thing that was objected to was the time relative to the spine examination that the doctor said that there were no injuries to the spine. I think the court should strike that testimony out relative to the injuries to the spine."

Plaintiff's counsel agreed to this because Dr. McArthur had made no examination of plaintiff's spine. The court said, "I thought he did." The record shows that Dr. McArthur did examine plaintiff's spine. Defendants neither objected to the testimony when it was given nor to the ruling of the court. One cannot claim error because of the admission of testimony or the ruling of the trial court unless a seasonable objection is properly made thereto. Chaney v. Lake Drive Garage,252 Mich. 412.

Appellants seek reversal also because the verdict of $8,000 was excessive.

Prior to the accident, plaintiff was a strong, healthy and able-bodied woman, 32 years of age. As a result of the accident she is permanently injured, one leg is a half-inch shorter than the other and, at the time of trial, she was still suffering pain and the inconvenience of using crutches and braces.

The verdict of $8,000 was not excessive. Watrous v.Conor, 266 Mich. 397, and authorities cited therein.

The judgment is affirmed, with costs to appellee.

BUTZEL, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred with BUSHNELL, J.