*1 Newman. Wait sign right refused to order to do so and he had a is the entire wall case, the instant In removed. ’property, ease and defendants’ s on located quite the fee held from different is therein ment supra. Lapp Glunz, an v. the defendant plaintiffs. costs affirmed, is The decree J.,C. Potter, Sharpe, Bushnell, Wiest, JJ., concurred. McAllister, North, Chandler, FORS v. LaFRENIERE. Pedestrians—Intoxicating Liquors Equally Di- Automobiles — — Court. vided entered, verdict for administrator estate Judgment, on places frequenting intoxicating pedestrian been where who had night receiving liquor fatal in- was sold on before foggy juries m., hit defendants’ ear at when a. equally night, by an divided is affirmed court. G.), (John presiding. Appeal from Iron; J., Stone January (Docket No. Calen- 4, 1938. Submitted 39,752.) April 1938. No. Decided dar administrator of estate Fors, Case William against Amelio Earl LaPreniere and Fors, of Victor damages for death of decedent. for Valenti judgment plaintiff. ap for Defendants Verdict *2 peal. equally divided court. Affirmed an
Ray plaintiff. Derham, for Dwyer, MacAllister & Brown and C. D. for de fendants. September 15, 1935, On at about J. Bushnell, morning, plaintiff’s decedent, o’clock in the Victor Highway No. 2, struck and killed U. S.
Fors, was Crystal de Falls, near an automobile driven fendant Earl LaFreniere and owned defendant riding therein. Amelio who was On Valenti, spent night some time in Fors had places intoxicating Crystal frequenting Falls where city, liquor of the sold. Police officers evening during acquainted, saw him he whom was although they believed him to be that, and stated necessary they take not think it was did drunk, custody. him one of Fors’ Carl Peterson, into permission to take from the officers secured friends, living outside the a short distance home, Fors Fors Crystal city westerly Falls. Peterson tes limits of put others Fors in their car, he and tified that they highway reached the until out on the drove They vicinity north two blocks Fors home. drove them to where Fors asked blocks, two and then west walking him north and he started car, out of let dis 2,000 feet which was about home, his towards staggering left the car.” “He wasn’t when tant. Why Fors 12 and o’clock.” “between This was highway when known; is not but to the back went lying side found on the south he was next seen pavement, at a feet off the or 8 road about 7 LaFeenieee. Foes v. point being east 250 or 300 feet described as city Crystal westerly Falls. limits Houghton, left is about
Defendants had midnight, Crystal around Falls, north of miles Highway a short dis- on U. had turned east S. They the accident. had of the scene of tance west spots fog on the road from in low encountered just Houghton ran the accident, before and, fog.” LaFreniere said: Defendant into a “bank got fog I noticed “A. as I into this bank Well, couple of hands and it seemed come towards a side of immediately I turned to the left. car and driver, next to the seated who was
Valenti, said: LaFreniere, anything until saw those hands.
“I did not see we *3 through (Fors’) the wind- head must have went His four inches a hole three or because there was shield place through. right my took the collision At the time right-hand of the the side on automobile was easterly traveling as direction. Just in an road, tried LaFreniere hands Mr. those soon as we seen to away applied Ibut swing brakes, the as he the car say from the time traveled far the car not how could sight of these application and the the brakes of the got stopped. the car I out of the car to where hands body impact the right over and walked after the highway lying the side of the south on which say pavement. it was I would the feet off or 8 7 impact and of the the time minute between a over to the stopped and walked the car time we the body. they the encountered parties that when claim Both they up were that “fog slowed bank” the time hour at miles an driving 40 35 and between passing car impact. hailed LaFreniere of the get the occupants could until to wait asked sheriff. When the sheriff arrived at the scene, Fors was dead and an examination disclosed that his skull leg was fractured, bones in his left were broken, and bruised. The sheriff tes- body considerably his tified that LaFreniere told him that “he didn’t see nothing party up right until the loomed in front of object right him, an in front of him. He said he tried to shunt it but he was too late; he couldn’t it.” make headlight
A of the Valenti car was broken impact, right the windshield was cracked, front damaged, fender was and there were blood stains upon the hood of the car, was dented a little. pavement The sheriff also found skid marks on the running easterly in an direction from the south side angle road an north side and measur- ing approximately 15 feet. brought by Action was Fors administrator under (3 Comp. both the act §§ survival Laws 14040- [Stat. §§27.684-27.704]), Ann. and the death (§§ [Stat. statute Ann. §§27.711, 27.712]). plaintiff’s testimony At the conclusion of defendants asked court for a directed verdict as count one of declaration because failed to show that Fors survived accident, as to both counts of the declaration because a lack of any proof negligence part on the of defendants, testimony up point and because introduced to that decedent was of con showed *4 tributory negligence of law. This as a matter mo proofs At all tion was denied. the close of- request for .a directed verdict re defendants’ grounds. Decision on the same was reserved newed jury, the case was submitted to who found and plaintiff in the sum of Motions $3,600. in favor of grant to a were to aside this new'trial set verdict subsequently denied. LaFbeniere. Foes v. appeal
Appellants propose questions five as follows: showing
1. Defendants claim that there was no negligence. agree this We cannot of actionable they exercising Defendants claim were contention. plaintiff; circumstances, while due care under operated says have their car should that defendants they have seen Fors in such that could at a said, It cannot be as time the accident. to avoid there was an absence evidence law, matter of that negligence. Szczawinski, Russell v. of actionable See espe therein, cited 268 Mich. cially and authorities Mich. Hecht, v. Lett & Summerfield Mich. 33. Schwaderer, Elrich had car under such con- their Whether defendants related so as to enable the circumstances trol under range stop of their assured clear them within the question of fact instance, a in this was, vision ahead by the to be determined refusing erred
2.
the court
Defendants claim
charge
jury
as follows:
you
charge
“I
it is the defendants’ contention
that
car, the defendant LaFreniere
of the
that
driver
care,
have seen with reasonable
could not
see,
did not
immediately
plaintiff’s
at the time
until
decedent,
appeared
right
impact,
at the
when he
of the
car with
plaintiff’s
up
you find
and if
that
his hands
against or stumbled
either
into
decedent
walked
guilty
plaintiff’s
passing,
decedent
car as it was
contributory negligence,
law,
a matter of
as
might
you
though
find the de-
recover, even
cannot
negligence
them were
either of
fendants or
place operation
the time and
the car at
in the
question.
argue
support
defendants
of this contention
In
theory of the
their
to have
entitled
were
that
being
jury,
explained
it
case
*5
path
the side of the
into
came from
road
the
decedent
only
The
of the car or into the side of
car.
evi-
theory
support
dence
such a
was defendant
couple
LaFreniere’s
statement that
“noticed a
of
hands
it
seemed to come
of
towards
side
by
car,” and a similar statement
Valenti.
’ theory
physical
Defendants
is refuted
facts
plaintiff’s
recited
which show that
above,
decedent
was struck
the front of the car. See Filter v.
Mohr,
establish
of the evidence
plaintiff’s
decedent
inwas
the exercise of due
contributory negligence
care and free from
?
necessary
question
It is not
to determine the
dis-
parties
pre-
cussed
hereto as to whether a
sumption
part
of due care on the
de-
cedent could be invoked under the circumstances opinion
this case, since we are of the
that the evi-
presented by plaintiff
dence
was sufficient
take
of his decedent’s due care to There
damage
was evidence as to skid
marks,
defendant Valenti’s car, the rate of
at driving,
defendant LaFreniere the nature and
character of the
atmospheric
and the
accident,
con-
surrounding
Wagner,
ditions
supra;
it. Patterson v.
Foes
v. LaFreniere.
*6
Petersen v. Lundin,
As heretofore indicated, facts show that Fors was struck the front of the car. More degree ability over, of intoxication, Fors to ob on-coming possibility serve traffic, and the that the the time of the liquor effect of the had worn off impact, questions were all of fact to be determined Railway See Peters v. Co., 178 Mich. 481. prove
5. It is contended that did not preponderance” a “fair of the evidence that the any dependents decedent had who were entitled to damages any under the death act and in that, event, the amount awarded was excessive. age living
Fors, an unmarried man, 33, was Sophie Crystal his near mother, Rosenlind, Falls. working He was at the time as a common laborer and support. appar- his mother’s It contributed to ently is anyone, if alone, conceded that she suffered pecuniary through Testimony Fors’ loss death. earnings as to his and his ex- received mother’s pectancies.
The amount of Fors’ contributions varied as he gainful employment; obtained on several occasions family kept amounted to a month. The $30 garden plot. and had a The mother testified cow giving money in her from time to addition that, place just around the did all work time, Victor had done. Fors also cut her husband as deceased hay for others. and wood Michigan Bepobts. provided argued because the mother that, is
It
lodging
board and
son with
worth,
her deceased
according
per day,
witness,
to one
$1
there
any
proof
loss to
is
financial
Mrs.
no
Bosenlind
of her son’s death.
because
Eckhardt,
v.
We
upon
to find a verdict
no basis
there was
that
our
pecuniary
not substitute
should
loss. We
for
Foes v. LaFreniere.
judgment
jury
for
in the absence of a
showing
that its verdict
improper
was secured
prejudice
sympathy,
means,
or
or that the amount
judicial
is such as to shock the
conscience. Watrous
Conor,
The entered the verdict is affirmed, appellee. with costs JJ., concurred with
Chandler and McAllister, J. J., concurred in the result. Bushnell, North, I am not in J. accord with Mr. Justice Sharpe, opinion. Bushnell’s says:
He presented by plaintiff “The evidence was suffi- cient take the of his decedent’s due care to the the There was evidence as to skid marks, damage to defendant Valenti’s car, the rate driving, at which defendant LaFreniere was the nature and character of- the accident, and atmospheric surrounding conditions it.” quoted portion opinion
The above
has
bearing upon
negligence
direct
of defendant but,
plain-
if
is to
it
recover, must be shown that
contributory negli-
tiff’s decedent
free
from
gence. This is so because of the fact that there eyewitness
at least one
to the accident. See Foote v.
*8
Maycroft,
Huelster,
194;
272 Mich.
Collar v.
274
376;
Mich.
Hewitt,
Faustman v.
In Neeb v. Jacobson, Mich. 678,we said: “Plaintiff was not struck the front of the car, apparently by but its side. If failed to look coming, guilty to see if cars were tributory negligence. she was of con If she looked and failed to plain sight, guilty see what was in she was of con tributory negligence. If she went across the street heedlessly, knowing without where she was, ran guilty into defendant’s automobile, she was of con tributory negligence. If she did not or did not listen hear defendant’s automobile reason of careless contributory ness and inattention, she was . " negligence Whether decedent stumbled into the highway walking car from the side of the while or, paid oncoming no attention to the thereon, car, is clearly not record, shown but either event ordinary there was a failure to use and such care, precludes recovery. failure judgment The trial court should re- be may versed trial. without a new Defendants recover costs. C. J., J., concurred with
Wiest, Potter, J., J. concurred result. Sharpe, Butzel,