Korstange v. Kroeze

The morning of August 14, 1931, at about four o'clock and dark, plaintiff was walking easterly along a 40-foot paved highway, and, he claims, about three feet from the southerly edge thereof, when defendants' truck, going in the same direction, ran him down and injured him. He brought this suit, and, upon trial by jury, had verdict and judgment. Defendants review by appeal.

Plaintiff was walking down hill, having just come over its crest. The defendants' truck came over the crest of the hill at a speed of 25 miles per hour and the driver dimmed the lights on account of approaching trucks also with lights dimmed. Just before he was struck, plaintiff looked back and claims he saw no car coming. It is contended that the court should have found plaintiff guilty of contributory negligence as a matter of law. The court instructed the jury that if plaintiff looked:

"as he says he did and the car was in the range of his vision and you so find, it was his duty to see the car and take precaution for his own safety accordingly. Just where it was when he looked back and saw no approaching car, does not clearly appear from the evidence. But if you find he was in a position where his range of vision as he looked back took in an oncoming car or should have taken in the oncoming car, that fact, if you find it to be a fact, is a circumstance which you are to consider on the subject of plaintiff's contributory negligence, if any. For I instruct you that the law is that a man is in law bound to see what the facts in the case indicate could have been seen if he looked. * * *

"It is for you as members of the jury to determine, under all of the circumstances of this case, whether the plaintiff was using ordinary care for his own safety as he was walking easterly on this highway."

Under the evidence the question of plaintiff's contributory negligence was an issue of fact, and the court was not in error in so holding. The driver of defendant's car testified that he did not see plaintiff until within 15 or 20 feet of him. If the driver was blinded by lights of the approaching trucks then he had no assured clear distance ahead, and was guilty of negligence in not lessening the speed of the car and regulating control thereof so as to be in command of sudden emergency. 1 Comp. Laws 1929, § 4697; Gleason v. Lowe, 232 Mich. 300; Ruth v. Vroom, 245 Mich. 88 (62 A.L.R. 1528). If he had lights and they were dimmed to meet the approaching trucks, and so did not accord him sufficient light to render clearly discernible a person in the roadway 75 feet ahead under normal atmospheric conditions, then he was not driving within the range of lights required by law and was driving without an assured clear distance ahead, in violation of 1 Comp. Laws 1929, § 4738;Spencer v. Taylor, 219 Mich. 110; Lett v.Summerfield Hecht, 239 Mich. 699; Clark v. Lawrence BakingCo., 240 Mich. 352.

No statute required plaintiff to walk upon any particular part of the pavement, and he had a legal right to walk on any part thereof, exercising, however, the care of a reasonably prudent man for his own protection and preservation. The court so instructed the jury, and was not in error in doing so. The claim of the driver relative to acts of plaintiff when the car was practically upon him presented a question of fact for the jury. Upon this subject the court instructed the jury:

"That is the claim of the defendant, that the plaintiff, as this truck approached him and was about to pass, walked directly into the side of the truck and that that was a negligent act on his part and would defeat his right of recovery in this case. * * *

"If the plaintiff negligently walked into the side of this truck, as the defendants claim he did, as they were passing him, that would be contributory negligence and he would not be entitled to recover."

Counsel for defendants complain because this instruction was not given until the court's attention had been called to the omission and then at the conclusion of the charge. We find no error in giving the defendants the benefit of the last word on the subject.

An examination of the record discloses no reversible error, and the judgment is affirmed, with costs to plaintiff.

McDONALD, C.J., and CLARK, POTTER, SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred.