215 Mich. 469 | Mich. | 1921
While driving east along Genesee street in the city of Lapeer, on his way from Saginaw to his home near Imlay City, defendant’s touring car struck and fatally injured plaintiff’s daughter, Merle Church, a girl 10 years old, as she was crossing Genesee street at its intersection with Main street along which she was going south on her way home from school. She was carried into the high school building located at the northwest corner of that crossing, where she died soon after her father and a physician who had been summoned arrived. Under the survival act plaintiff recovered in this action a verdict for her estate of $1,547.08.
Merle Church was a bright, healthy child of normal size and mentality for her age, a fourth grade pupil attending the Main street ward school north of Genesee street, south of which she lived. On that day she and a little girl companion on their way home from schooL went south together on the west walk of Main street, both having on roller skates. About the time they reached the crossing two teams drawing empty hay wagons were crossing Main street going west along the north side of Genesee street, driven by two brothers named John and Samuel Taylor, who- were returning home from delivering their loads at an elevator. John was in front and his passing checked the progress of persons walking south on Main street. Observing several girls waiting at the north curb of Genesee street for an opportunity to cross, Samuel stopped his team before he reached the crosswalk to let them pass. He did not particularly notice the Church girl nor defendant’s auto until about as it struck her when he saw it pass him and run across Main street before stopping and at the same time saw the girl lying in the road. He testified that as he saw the car at and just after the accident it had in his opinion a speed of “20 miles or better” when it struck the girl. The speed of
This was the second car defendant had owned. He was an experienced driver, had driven past that corner before and knew a schoolhouse was located there. On that day he was driving with all side curtains on the left side of his car towards the schoolhouse he was passing. Of the situation and his knowledge upon the subject he testified in part as follows:
“When I approached that crossing I didn’t see anything in the street, but I saw the kids playing around there; I saw a couple of teams coming. I passed the first near the walk there, somewheres. I was on the right side of the road, and I should judge there must have been six or seven feet, anyway, away from the*474 team I passed. I didn’t see nothing on the road as I approached the crosswalk until I hit the girl. I didn’t see her until the car hit her. * * * I knew there was a schoolhouse there on that comer and 1 had it in mind as I approached that intersection. I saw the children playing all around there. * * * I do not remember seeing any girls on the crosswalk. The children I saw were on the walk and playing around. * * * I did not have in mind that some one might step from behind that wagon as it passed over the crosswalk. That didn’t occur to me, — I kind of think I did have it in mind that some one might step from out behind the wagon. I couldn’t say why I say now I did and a moment ago I said I didn’t * * * I was looking all I could, and sure I was looking at the rear of that wagon. * * * I do not know how far I was east of the crosswalk when the car made the first stop. I do not know how fast I was going.”
Defendant’s counsel recognizes there was abundant evidence of his negligence to carry that question to the jury but urges that a verdict should have been directed in his favor on the ground of contributory negligence; and that in any event there is reversible error in the court permitting plaintiff’s counsel when examining jurors on their voir dire to inquire of each juror who owned an automobile whether he was a member of or held a policy in the Citizen’s Mutual Automobile Company of Howell.
The record shows 17 jurors were interrogated on that subject by .plaintiff’s counsel, 9 of them before any objection to that line of inquiry was interposed. Plaintiff’s counsel then challenged a juror for cause on the ground he was shown to have a policy in the company, to which defendant’s counsel objected and the court at first overruled the challenge, but after argument of the question by counsel in the absence of the jury decided the challenge was well taken. Defendant’s counsel then interposed a challenge to
Of the juror excused it can well be contended as the record then stood that plaintiff’s challenge for cause was not tenable, for the insurance company mentioned was not a party to the action nor defendant shown to be insured by it and the presumed objective of any permitted voir dire examination upon that subject was necessarily limited to peremptory challenge. But error does not necessarily follow when the court through abundance of caution to secure an impartial jury excuses a juror on ground not technically sufficient to support a challenge for cause, as it would in retaining one who is challenged and ought to have been rejected (Atlas Mining Co. v. Johnston, 23 Mich. 38). No objection appears to have been made by defendant to the juror called in place of the one rejected beyond that urged against all the others. Defendant is not shown to have exercised all of his peremptory challenges nor to have then questioned the competency and impartiality of tha jury as finally constituted, except as affected by plaintiff interrogating them relative to their connection with the named insurance company. The court had discretionary powers within the limit exercised.
Upon the question of disqualification of a juror by reason of membership in a mutual insurance company not a party to but interested in the litigation counsel cite City of Detroit v. Railway, 134 Mich. 11, where it was held the interest of a taxpayer in a litigating municipality did not disqualify him from serving as a juror. When that case was decided taxpayers in
Upon the claimed prejudicial effect of plaintiff’s counsel interrogating jurors on their voir dire as to their holding policies in a named mutual insurance company and thereby implying its interest in the litigation, counsel cite Kerr v. Manufacturing Co., 155 Mich. 191; Hughes v. City of Detroit, 161 Mich. 283 (137 Am. St. Rep. 504); Morrison v. Carpenter, 179 Mich. 207 (Ann. Cas. 1915D, 319); Fitzgerald v. Railway, 206 Mich. 273; Sherwood v. Babcock, 208 Mich. 536; Grubaugh v. Simon J. Murphy Co., 209 Mich. 551. All of those cases with one exception relate to attempts by plaintiff’s counsel after the jury had been selected and during the trial to show that defendant was indemnified by insurance, most of them in his address to the jury. In Grubaugh v. Simon J. Murphy Co., supra, plaintiff’s counsel sought to introduce the
The question of right to inquire of jurors as to their being insured in an indemnifying company not a party to the action before they are accepted is one upon which considerable authority is to be found, including several decisions in our own State. This court has drawn the line at interrogating jurors on the subject while the jury is being selected, which at that stage of the proceedings is apparently limited to determining the advisability of a peremptory challenge. Beyond that point the subject is strictly excluded and further reference to it in presence of the selected jury is held prejudicial error. The later rulings of this court upon the question are foreshadowed in the case of Peter v. Railway Co., 121 Mich. 324 (46 L. R. A. 224). It there appeared inferentially from examination of jurors on their voir dire that insurance companies were interested in the result of the action. Counsel emphasized that fact in summing up the case and the court without questioning the right to interrogate jurors upon that subject while a jury was being selected said that the—
—“comment of counsel as to the amount of capital stock of the insurance company was untimely, and should have been omitted. We need not determine whether this comment was damaging error not cured by the charge, as the case must go back on other grounds.”
“It was certainly proper to examine these jurors as to their relations with these companies, and to ascertain if they had any interest in them. It was therefore impossible to keep the fact from the jury. The court, in the most emphatic language, instructed them that this action was properly brought, that they must dismiss from their minds all consideration of the question of insurance, and must give the full value of the lumber regardless of the insurance, if the defendant was liable.. Under this state of facts, I think that the appellate court should assume that the jury followed the instructions. * * * The fact was necessarily before the jury, and the court did all that could be done to prevent any prejudice on the part of jurors.”
In subsequent decisions this court has in effect indorsed these views. Such is the import of cases cited by defendant wherever the question is touched, to which may be added Snyder v. Mathison, 196 Mich. 378; Link v. Fahey, 200 Mich. 308; Webster v. Stewart, 210 Mich. 13.
In the present case plaintiff’s counsel made no reflecting comment and said nothing about insurance before the selected jury during the trial or when examining them as to their qualifications, beyond asking the question as stated. Defendant was not even shown to be insured or that any insurance company was interested.
The trial court instructed the jury in emphatic language that no question of insurance was before them, they should entertain no impressions about it, the case was between plaintiff as administrator of his daughter and defendant Stoldt, concluding:
“And I say to you that you would violate the sanctity of your oaths if you would allow the question whether he is or is not insured to enter your minds or influence your judgment in this case.”
In support of the contention that a verdict should have been directed for defendant because of decedent’s contributory negligence counsel cite the following cases: Zoltovski v. Gzella, 159 Mich. 620 (26 L. R. A. [N. S.] 485, 134 Am. St. Rep. 752); Mollica v. Railroad Co., 170 Mich. 96; Tolmie v. Taxicab Co., 178 Mich. 426; Hill v. Lappley, 199 Mich. 369; Fulton v. Mohr, 200 Mich. 538; Deal v. Snyder, 203 Mich. 273; Flintoff v. Lighting Co., 208 Mich. 527; Hayes v. Norcross, 162 Mass. 546 (39 N. E. 282). While analogous in certain respects, those cases so differ from this in various essential facts as not to be of controlling value upon the question of decedent’s negligence. One marked distinction is that none of the cases involve an injury to a pedestrian by a motor vehicle at a street crossing except the Tolmie Case, where in broad daylight a man of mature years and large experience upon the streets as a teamster walked into the path of an approaching taxicab in plain view to him from the time he started to cross, which companions by his side readily observed and avoided. That accident occurred at a quiet crossing with no other vehicles near and no confusion of passing teams
■ Upon that phase of the case the inquiry is limited to whether facts existed carrying the question of the girl’s negligence to ■ the jury measured by her age, intelligence and experience so far as disclosed. When she and the little girl with her on their way home from school along the west walk of Main street approached the Genesee crossing they with others were temporarily stopped by the traffic on the latter street. She was in the lead a short distance ahead of her companion, and stopped when down the incline of the walk near the edge of the curb as John Taylor was driving across it closely followed by his brother Samuel who, noticing the children waiting, stopped his team, leaving the walk clear for them to cross. This was in effect an invitation for those waiting on the walk to go ahead, a significant thing as bearing upon the girl’s negligence. On seeing this man up in his wagon facing west with a clear view down Genesee street in that direction stop his team to leave the walk clear for them to cross over the street ahead of him, it would not be unnatural for a little girl stopped by traffic at the curb to take his conduct as an assurance that those waiting could safely proceed. Of her conduct at that time Ethel Fisher, a high school student 19 years of age who was standing back of the curb and on higher ground, testified she saw Merle Church standing in front of her by the curb. and looking around as John Taylor’s team and wagon passed over the crosswalk, and when Samuel Taylor stopped his team with the heads of his horses far enough from the crossing “so there wasn’t any danger of getting hurt” the girl looked both ways, “to the east and west and started ahead;” that she did not skate, but walked on her skates “just ordinary walking,” — did
Counsel for defendant urged it was the duty of plaintiff’s decedent to look to the west immediately on passing out from behind John Taylor’s wagon and she was guilty of contributory negligence in not doing so. On the court’s refusal to direct a verdict for defendant his counsel tendered and the court submitted to the jury the following special question: /
“Did Merle Church, as she passed from behind John Taylor’s wagon and while she was yet a safe distance from the automobile, look toward the west?”
This the jury answered in the affirmative, and appellant’s counsel now contend' there was no testimony in the case to warrant an affirmative answer.
Defendant’s wife, who sat on the back seat, saw the girl before the car struck her although he did not. She testified that the only indication the girl saw the' car was from her actions when she gave a start back, and said, “That is the first I seen of her when she gave her start back, just as though something drew her attention to it.” While direct affirmative testimony on that question is meager we are not prepared. to say there are no facts and circumstances from which a jury might reasonably draw a favorable inference. Neither are we persuaded under the circumstances of this case that in any event an answer to the question
The relative rights and duties of pedestrians and drivers at street crossings is discussed and fully stated in the recent case of Benjamin v. McGraw, 208 Mich. 75. Applying the principles there recognized to the facts in this case, where the pedestrian is but a child, the question of her contributory negligence was fairly within the realm of facts for determination by the jury.
The judgment is affirmed.