238 N.W. 322 | Mich. | 1931
Plaintiff's decedent, Robert Edgerton, three and one-half years of age, was instantly killed about 4 p. m. on August 28, 1929, a clear day, by a car driven by defendant on M-118 traveling east. The child was crossing the 24-foot graveled roadway and was approximately four feet from its north edge when defendant's car struck him. According to defendant's testimony, he saw the child, *458
when 200 feet away, on the grass plot between the south side of the roadway and the fence of the abutting property. At the first trial of the case, Edgerton v. Lynch,
The case was submitted to the jury at 4:30 on the afternoon of January 23, 1931; at 5:15 p. m. they were excused until 9 o'clock the next morning, when they deliberated the entire day, and then were excused until Monday, January 26th. At 10:45 a. m. of that day, they advised the court of their inability to come to an agreement. The trial judge thereupon stated that if they were disagreeing on the question of liability, he would instruct them as lie should have in the first instance, that under the testimony of defendant he was guilty of negligence. Shortly thereafter they returned a judgment of $2,000 in favor of plaintiff. From this judgment, defendant appeals. The claims of error are taken up seriatim.
(a) It is claimed that the court erred in allowing the jury to separate over the week-end. There was *459
no error in permitting the jurors to so separate.Hampton v. Van Nest's Estate,
(b) A map was introduced in evidence by the plaintiff and the trial judge refused to permit the jury to take it into the jury room. This was within the trial court's discretion.Canning v. Harlan,
(c) Error is claimed because plaintiff was allowed to include funeral expenses as part of the damages sought to be recovered. The case was brought under the death act, 3 Comp. Laws 1929, § 14062, providing as follows:
"And in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered."
Evidence in regard to funeral expenses was proper. Like loss of earnings, they constitute a pecuniary injury resulting from death.
(d) The difficult and important question in the case, however, is whether the court should have charged the jury that the defendant under his testimony was guilty of negligence as a matter of law. There was no contributory negligence shown on the part of decedent's parents, nor could the decedent on account of his tender age be guilty of contributory negligence.Johnson v. City of Bay City,
The judgment is set aside, with costs to defendant, and a new trial ordered.
WIEST, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred. *461