224 N.W. 636 | Mich. | 1929
Lead Opinion
Plaintiff brought suit against defendants to recover damages alleged to have resulted from the negligent operation of an automobile by defendant Medema which belonged to defendant Carbine. Carbine owned a store in Muskegon. Medema worked for him. Plaintiff was 5 years and 8 months old when injured, September 21, 1926, and a pupil in the Muskegon schools. Medema, the day of the accident, took the automobile near the store and started home. Plaintiff was on her way to school, but, attracted by Muskegon fire equipment going in an opposite direction, had turned and followed it some distance, and then started back toward the schoolhouse. Both plaintiff and defendant were traveling west on Grand avenue, immediately prior to plaintiff's injury. On the south side of Grand avenue is an alley at right angles with the street. Medema turned to go into this alley. Plaintiff was struck and injured. There is dispute whether plaintiff was on the sidewalk or not when injured.
1. During the trial the Muskegon Chronicle, a newspaper circulating in Muskegon and vicinity, published an article as follows:
"Second trial started in damage suit. A second trial in circuit court today in a suit commenced in *132 behalf of Loretta Easton, seven-year-old school girl, injured when struck by an automobile at an alley on Grand avenue near Fifth street in 1926. A circuit court jury last year awarded the girl $2,700 damages. The defendant was E.H. Medema, driver of an automobile owned by E.H. Carbine, Muskegon produce dealer. Both Medema and Carbine are defendants in the present suit. The girl's leg was broken and she will be crippled the rest of her life, according to the declaration in this case."
Prior to its publication, plaintiff's attorney was interviewed, but the only information obtained by the reporter was the age of plaintiff. This article was presented to the court, and defendant's counsel moved that the jurors be interrogated by the court to determine whether this article or any knowledge of its contents had come to their attention, and, if such interrogation showed the jurors had knowledge or information gained from it, to grant a mistrial. The trial judge refused to interrogate the jury or to direct a mistrial, but said:
"It is unfortunate, of course, that this appeared in the paper. * * * It was unfit to appear in the paper."
Error is assigned upon the refusal of the court to interrogate the jury and to declare a mistrial. The action of the trial court was not error. Sherwood v. Railway Co.,
2. While the jury was being impaneled, plaintiff's counsel requested the court to ask the jurors if they were members of the Auto Owners Insurance Company. Upon objection, the court refused to ask the question, and stated to the jury, "We have nothing *133 to do with that." Upon direct-examination of Martha Wilson by plaintiff's attorney, she testified Medema said: "My car is insured." This was objected to, and the court instructed the jury that any testimony about insurance should not be considered. When defendant Medema was on the stand plaintiff's counsel cross-examined him as follows:
"Q. You didn't tell Mrs. Wilson that your car — this car — was insured, and you would see that the little girl went to the hospital?
"A. I never told Mrs. Wilson the car was insured. It wasn't my car.
"Mr. Riley: I object to the question.
"The Court: Well, let the answer stand."
Upon the closing argument of the case, plaintiff's counsel said:
"I am going to talk to you a moment about Mr. Medema taking the little girl over there and what he said, but I want to say to you, gentlemen, that you are not interested whether there was any insurance or whether there was not —
"Mr. Riley: I object to the argument, and take exception to it, and ask that it be stricken out and the jury instructed to disregard it.
"Mr. Wetmore: You should not say anything about insurance.
"Mr. Riley: I ask for a mistrial on that ground."
Counsel then stated he would like to make a statement of what he proposed to say. The court directed the jury to retire and plaintiff's counsel stated he proposed to say to the jury it was not a question of whether defendant was insured or not but one bearing upon the truth of Medema's testimony. The court declined to grant a mistrial, but warned plaintiff's counsel he was taking chances. The court charged the jury the question of insurance was not to *134 be considered by them in arriving at their verdict or in fixing its amount.
Where, as here, it is apparent that immaterial and collateral matters have been purposely injected into the record and persistently kept before the jury to create prejudice, a reversal must be had. Peter v. Railway Co.,
3. Plaintiff was injured September 21, 1926. Trial of the case was commenced March 26, 1928. Plaintiff was seven years old January 16, 1928. She was permitted to make a statement to the jury not under oath. It was not error to permit her to do so. Section 12556, 3 Comp. Laws 1915; 4 Blackstone, Com. 214; 3 Wigmore, Evidence (2d Ed.), § 1821; 9 Holdsworth, Hist. Eng. Law, 188-189.
4. It is contended the court erred in excluding the question of plaintiff's contributory negligence from the jury because she was permitted to make a statement to the jury. It does not follow because the witness was permitted to make a statement not under oath when more than seven years old, she should be held to have had sufficient discretion to be held guilty of contributory negligence when less than six years old. *135
5. Defendant contends the question of plaintiff's contributory negligence should not have been withdrawn by the court but considered by the jury.
Blackstone says:
"The capacity for doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment." 4 Blackstone Com. 23.
In McDonough v. Vozella,
"There are, doubtless, some children, even of this tender age, who show a prudence and thoughtfulness, and an ability to guard against dangers, commonly belonging to riper years."
And in Daniels v. Clegg,
"In deciding upon the degree of diligence to be required of children, or other persons more or less incompetent, that incompetency must be taken into account; and no higher degree of diligence must be required of such persons than we have a right to expect, or that experience has shown such persons generally would be likely to exercise under like circumstances."
"Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child 3 years of age less caution would be required than of one 7, and a child of 7 less than one of 12 or 15. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case." Railroad Co. v. Gladmon, 15 Wall. (U.S.) 401.
In Plantza v. Glasgow Corp., 1910 Session Cases, *137 786, plaintiff was nearly 5 years old. Lord Justice-Clerk said:
"I reject altogether the idea that a boy of five cannot be guilty of contributory negligence, and I do not think any judges have ever said that that was the law without regard to the particular circumstances being dealt with. What judges have said (and I agree with them) is that on the facts of a particular case it may be difficult to hold that a boy of five has been guilty of negligence. They did not say that he could not be held guilty of negligence if the circumstances showed that he had not taken that care of himself which is expected of a child of that age."
And Lord Ardwall, in concurring, said:
"If it had been necessary I should have held * * * that the injured boy was guilty of contributory negligence, and I concur with what your Lordship has said on this subject with regard to children who are not altogether without intelligence or the ability to take care of themselves."
"Age alone is not the conclusive test. * * * As was said inTrudell v. Railway Co.,
This is in accord with the great weight of authority. 45 C. J. p. 1002; 1 Thompson on Negligence, § 313.
*138Judgment reversed and a new trial granted.
WIEST, CLARK, and SHARPE, JJ., concurred with POTTER, J.
Concurrence Opinion
I concur with Mr. Justice POTTER except in his ruling that the question of plaintiff's contributory negligence was for the jury.
Regardless of the general principles governing care required of children and the weight and conflict of authority as to the age at which a child may be charged with contributory negligence (45 C. J. p. 1002), it is settled law of this State that a child under 6 years of age cannot be so charged.Johnson v. City of Bay City,
Upon this point the opinion of Mr. Justice POTTER cannot prevail without overruling these cases. The circuit court properly held, as a matter of law, that, because of her age, plaintiff was not guilty of contributory negligence.
NORTH, C.J., and FELLOWS and McDONALD, JJ., concurred with FEAD, J. *139
