Reetz v. Schemansky

On January 15, 1936, at about 11:30 p. m., plaintiff was walking in an easterly direction on a boulevard in the city of Detroit known as Outer Drive. This boulevard is a hard-surface highway containing space for four lanes of traffic in each direction with a parkway in the center separating the east and west bound traffic. At the time above stated, the weather was fair, the pavement dry and the street lighted with boulevard lights. Plaintiff was walking on the south half of the boulevard pulling a small express wagon upon which he had three rugs. The express wagon was three or four feet wide, about three feet long and from 18 inches to two feet in height. There was no light of any kind on the wagon.

The record shows that the defendant was driving his automobile in the center lane of the highway in an easterly direction, overtook plaintiff's wagon, shoved it forward into the plaintiff causing him to fall to the pavement; that on the evening of the accident, defendant had worked late in his office and was somewhat sleepy when the accident occurred; that immediately prior to the accident defendant was driving at an ordinary rate of speed, with head lights burning on what is known as the down beam; and that when he saw plaintiff it was too late to avoid the accident. After the accident, plaintiff was taken to the hospital, remained there over night and was taken home the next day. Plaintiff is 67 years of age and a musician. He played in some band concerts during the year 1935 for which he received wages at the rate of $35 per week.

The cause was tried before the court without a jury. The court found for the plaintiff in the sum of $1,000 and judgment was entered thereon. Defendant appeals and contends that plaintiff was guilty of contributory negligence as a matter of law in his failure to display a light on the express wagon in violation of 1 Comp. Laws 1929, § 4736, as amended by Act No. 64, Pub. Acts 1931, and a similar ordinance of the city of Detroit.

In Korstange v. Kroeze, 261 Mich. 298, we said:

"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."

In Hanser v. Youngs, 212 Mich. 508, the court said:

"But there must be some causal connection between the accident and the want of a tail light in order to make the negligence contributory. In Graham v. Hagmann, 270 Ill. 252 (110 N.E. 337), it was said:

" 'The mere fact that defendant in error was riding in the vehicle without such a light did not render him guilty of such contributory negligence as would bar his cause of action, unless the omission of such light in some way proximately contributed to the accident in which he was injured.' "

In Gleason v. Lowe, 232 Mich. 300, Mr. Justice WIEST said:

"The statute, in fixing the time for displaying a light as one hour after sunset sets a known time, regardless of darkness or weather conditions. If the collision was one hour after sunset plaintiff was driving in violation of the statute and was guilty of negligence per se. Such disobedience, however, to have bearing in the nature of contributory negligence, in an action by the offender against one causing him an injury, must contribute to the injury. Syneszewski v. Schmidt, 153 Mich. 438; Spencer v. Phillips Taylor, 219 Mich. 353;Beebe v. Hannett, 224 Mich. 88. It was a question of fact for the jury whether there was any causal connection between the statutory violation of plaintiff and the injury occasioned by defendant. Arvo v. Delta Hardware Co., 231 Mich. 488 ."

See, also, Budnick v. Peterson, 215 Mich. 678; Graham v.Evening Press Co., 135 Mich. 298; Stevenson v. United StatesExpress Co., 221 Pa. 59 (70 A. 275, 128 Am. St. Rep. 725); and 20 A.L.R. 1433 and cases cited therein.

The street upon which this accident occurred was wide enough for four cars to travel abreast; the pavement was dry; the weather was clear; there was no traffic upon the street ahead of defendant; and the street was lighted sufficiently so that plaintiff could see objects in the street for a distance of two blocks. Under such conditions we think that the question of causal relation between plaintiff's failure to have a light upon his express wagon and the injury which he sustained is one of fact.

We think there can be no question about defendant's negligence. He drove a car down a main thoroughfare in the night time, at a rate of speed of 25 miles per hour, while he was tired and sleepy; and he did not see plaintiff until the car was almost upon him.

Defendant also contends that the amount of damages assessed by the court is excessive. We do not think so. Plaintiff was injured January 15, 1936; and at the date of the trial, May 4, 1936, he was still complaining of severe headaches, of his inability to play his musical instrument in a band, and of frequent dizzy spells. Upon other occasions we have said that the amount of damages allowed for pain and suffering must rest in the sound judgment of the trier of facts, nor do we substitute our judgment on such questions unless a verdict has been secured by improper methods, prejudice or sympathy or is so large as to shock the conscience of the court.

The judgment of the lower court is affirmed. Plaintiff may recover costs.

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