Ransom v. Melegi

18 Mich. App. 476 (1969) 171 N.W.2d 482

RANSOM
v.
MELEGI

Docket No. 5,404.

Michigan Court of Appeals.

Decided July 30, 1969.

Prosser, Cowell, Renner & Molineaux, for plaintiffs.

Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle (George Clark, of counsel), for defendants.

Before: FITZGERALD, P.J., and LEVIN and T.M. BURNS, JJ.

T.M. BURNS, J.

The plaintiff was 12 years old when a collision with the defendant's car which resulted in his injuries occurred at the intersection of Southfield and Austin in the City of Lincoln Park, Michigan.

There is a dispute as to how the accident happened. Plaintiff claims to have been standing alongside his bicycle in the left turn lane waiting to cross the remainder of the street. The defendant claims the plaintiff rode out in front of him from the side street.

The plaintiff contends that the trial judge committed reversible error by refusing to give an instruction that a 12-year-old plaintiff's standard of care is to be measured by the standard of care of an ordinary child of similar age, experience, judgment, and physical and mental development.

It first must be noted that, contrary to defendant-appellee's contention, the charge as to standard of care given by the trial judge was objected to by plaintiff's counsel in a proper and timely manner. GCR 1963, 516.2; 6 Callaghan, Michigan Pleading & Practice (2d ed), § 38.133. Therefore, the objection was preserved on the record and is properly before this Court.

The trial court in instructing the jury as to the definition of negligence said:

"Because the measure of care naturally varies in the different circumstances and the jury in each particular case has to establish from the testimony in the case exactly the measure of care which should have been exercised under the circumstances and it is just that amount of care which would or should have been exercised by a man of ordinary intelligence and prudence. That is what we mean in law by the term negligence."

The court further instructed the jury as to the meaning of contributory negligence saying:

"You can assume that it encompasses all the definition of negligence. * * * It is some omission on the part of the plaintiff which an ordinary prudent person would not have done or would not have left undone under the circumstances"

Based on the above charge, it is defendant-appellee's position that since the jury were told that they were to determine the standard of care, and that the jury both saw and heard the child and his testimony, that they necessarily took into account the minor plaintiff's age, experience, judgment, physical and mental development. The trial judge took the same approach in his opinion after hearing argument for a motion for a new trial.

The plaintiff contends that he was entitled to the child standard of care instruction. We agree.

For as we said in DeNoyer v. City of Ann Arbor (1967), 9 Mich. App. 26, 29:

"The due care of a child for its own safety must be measured by the care of the ordinary child of similar age, experience, judgment, and physical and mental development may be reasonably expected to observe under similar circumstances. Denman v. Youngblood (1953), 337 Mich. 383."

When the plaintiff is an infant, the child standard of care instruction must be given. Harris v. Crawley (1912), 170 Mich. 381; Denman v. Youngblood, supra, and cases cited therein; DeNoyer v. City of Ann Arbor, supra.

We further find that the statute commonly referred to as the bicycle act, MCLA § 257.657 (Stat Ann 1968 Rev § 9.2357) does not, as the trial judge suggested, change the responsibility of the trial court to give the special child standard of care instruction. The statute provides:

"Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle"

See Nielsen v. Henry H. Stevens, Inc. (1962), 368 Mich. 216; Shafkind v. Kroll (1962), 367 Mich. 42; Hart v. Warners (1961), 363 Mich. 527.

The statute does not purport to change the standard by which a child's care is to be measured. It merely imposes upon a bicyclist the so-called "rules of the road" which govern a driver's rights and duties.

We find that the trial court erred in its refusal to give an instruction which specifically directed that a child's conduct should be measured by the care the ordinary child of similar age, experience, judgment and physical and mental development may be reasonably expected to observe under similar circumstances.

As an additional ground for appeal the plaintiff alleges that the trial court erred in refusing to allow a newly discovered witness to testify. Since we are remanding for a new trial, this witness can be properly endorsed and subjected to discovery before the new trial, thus removing whatever objections the trial court might have had to the admission of his testimony. Since the issue has been mooted by our remand, we do not decide whether the trial court erred in its refusal to allow the witness to testify.

Reversed and remanded for new trial. Costs to appellants.

All concurred.