*1 [Junе* v. BRONKHORST. GILSON v. SAME. PRITCHETT Negligence. Negligence Contributory 1. — negligent- to have heen plaintiff who is claimed prudence The plaintiff to- had a in what estimated view must be expect from defendant. Negligence. Contributory 2. Same — verdict not judged on motion for directed A conduct plaintiff’s by the- the standard care been done but what could his; circumstances of particular of him under exaets law or inaction. action criticized Negligence— Contributory Pedestrian — 3. Automobiles —Minor Speed. Zone — School determining in whether or- that are involved circumstances contributory negligence in a- guilty of plaintiff not child injuries passing over cross- while arising received out of ease shortly sehool hours- zone after in a sehool on a street walk away. speed approach and the distance motorist’s include the Appeal and Verdict —Record. Error —Directed 4. favorably plaintiff on review of denial The reeord is viewed for directed verdict. of motion Contributory- Zone — Pedestrians —School 5. Automobiles —Minor Jury. Negligence for Question — contributory 9-year-old girl passing, negligence of Question shortly after- easterly front of on street in school over crosswalk [2] [1] [4] [5] [6] [7] [8, 9] 3 Am 5A Am 15 Am 38 Am 38 Am Am15 53 Am Jur, Appeal Jur, Negligence Jur, Negligence Jur, Damаges Jur, Damages Jur, Jur, References Automobiles Trial and Error § §§ §§ 842. § § 72-74. 373-377. 346. 192. Points § Highway 886. Traffic Headnotes § 1048. Gilson Bronkhorst. plainly-marked hours sehool school zone and who was struck passed when she had southbound ear center line properly jury, about feet was submitted to appears where it and, pass she had waited for northbound cars to although she *2 looked, approach. did see had not defendant Damages Suffering Leg Injury. and Pain —Future — *6. Evidence, testimony ineluding attending physician, of presented jury as or plaintiff 9-year-old for to whether not girl damages for pain was entitled to future suffering, and where leg, she had sustainеd a comminuted fracture of left a original point refracture at shortening fraeture and trial, leg years later, limped and at time of over 4 when tired. Charge. Damages Instruction—Request Same —Future 7. — plaintiff, any damages, that if entitled Instruction was en- damages pain for suffering disfigurement, titled to sueh or by shortening leg otherwise, reasonably of her as she was held, undergo certain to in the future not erroneous for laek of complete more detailed instruction if that there were a want proof tending degree such probability show sueh consequences certainty they as to amount to a reasоnable original damages will injury, result from the for future allowable, would proffered not no where defendant such request. Pedestrians—Crossing 8. Automobiles — Center Line —Instruc- tions. given 9-year-old Portion of girl instruction aetion eastbound against southbound motorist found she should seen approaching proceeded defendant front of negotiated him unless she successfully right-hand portion held, highway and had crossed the center line not reversible error charge when whole, considered taken as a es- pecially in opportunity view of the afforded offer correction of the instruction. 9. Trial —Instructions. The faсt objection- that isolated sentences in an are instruction able does not error, charge constitute reversible where court, whole, correctly taken apx>lieable as a law states the particular clearly ease and defines the issue.
Dethmers, G.J., JJ., dissenting. Kelly, and Carr and Appeal Fox Muskegon; (Noel P.), J. Sub- mited October 10, 37, 1957. (Docket Nos. Cal- endar Nos. Decided June 47,212, 12, 1958. 47,213.) for against Bronkhorst Albert by Ida Gilson Case daughter, in treatment expense incurred
medical Judy Pritchett, and against next friend, Pritchett, Case injuries personal sustained for defendant
same by automobile. struck when appeal. Verdicts trial consolidated Cases appeals. plaintiffs. Defendant judgments for Affirmed. plaintiffs.
Poppen, Sorensen, for & Street Hathaway, Robb, for defendant. Latimer, &Clinic originally assigned to a cases, These J. Black, reassigned writer Feb- Justice, were Brother *3 ruary 27,1958. negligence for are consolidated actions
Before us alleged motorist defendant that the in which it plain- person injury of to the inflicted actionable plus years Judy aged Judy 9 Pritchett. tiff — The school Hile school. the time—attended the highway premises of west side are situated on the Muskegon Pleights. US-31, a short distance south of prior 20 minutes School had let out some stayed Judy for the events we are to consider. attempted help then interval to clean erasers. She crossing highway, main in front of the school building home, her and from to east toward west approached as the car from the north. defendant’s testimony, Judy According favorably-viewed to her had crossed the the car after she was struck highway paved portion half of the west easterly pavement. Defend- on half of according girl to his ant did not see the little until, n testimony, right than “she no more front,” v. Bronkhobst. GtILSON away. sufficiency proof No to feet of negligence part presented. on his Fur- of causal by quotation appear will later from the ther details judge’s opinion. “trial
Trial to court and resulted in vеrdicts plaintiffs. judgments respective Defendant appeals. Negligence. Contributory Question
First: The Defendant his motion for directed ver- insists granted, dicts should been bench-declared imputation contributory negligence. to We agree. (cid:127)cannot
There is no need for review recent relevant de apply we essence of which case cisions, prudence party “the with declaration that in jured (Judy) must be estimated in view of what he (she) expect right person had a from such other (the defendant),”* and with eorollarial declaration judge properly that the trial to hold this refused child-pedestrian guilty contributory negligence perform rely view of her undoubted fair on proceed duty ance of the defendant’s to enter and through especially considering this school zone— day speed time of reduced and with increased —at vigilance. Steger point Blanchard, See (rehearing, 140). Mich rule is 353 Mich If such applicable proper pedes case to an adult applied trian, it must in circumstances as here be 9-year-old pupil. case school large just In this case a school had let out. Motor- approaching vicinity plainly pre- ists the by proper were cedently signs warned traffic control *4 testimony the imminence of a school zone. passed (“a big a motorist defendant overtook and premises), prove block” north of the school tended 17 Mich [*] Detroit Milwaukee R. Co. Van Quotation from 99, 119. v. Steinburg, proceeding rate excessive at an was defendant through proceeded speed he entered vehemently True, as defendant zone. school contends firmly (with planted on Denman feet both oncoming 383), was Youngblood, car Mich
v. by Judy through means there to be seen — attempted prior to her “further observation” — in favor crossing. not decisive that fаct alone is But days Pedestrians these verdict. of an instructed highways as- must on occasion—such of crowded letting suredly or has when out is the case a school visibly recently pupils in front judge its released —cross con- approaching motor traffic. their We by what could on motion directed verdict not duct for of care been but the standard seen and done particular cir- the law exacts of them under or inaction their criticized action cumstances Corporation, (Normand Thomas Theatre v. constantly 50); words, in other variable depends on ascertainment standard which its add that To this we need but such circumstances. motoring-speed-of-approach factor, and the dis- stance-away factor, as a child to cross his assumes shortly during school marked school zone or after part hours, a vital of “the circumstances constitute Flynn (Quotation he under which acts.” Normand, Kramer, supra.) 500, 271 Mich followed in question Judy walking While the whether sharply disputed, running- at we the time was can not on review of motion for directed look verdict favorably at the other than ac record her. We cordingly judge’s agreement arrive the trial disposition contributory negli quoted gence, from the follоws: record as carefully “This court has considered the guilty contributory of whether Prichett *5 G-ilson v. Bronkhorst. negligence a matter of law and concludes that properly- under the facts of this case such issue was jury. submitted “This accident XJS-31, occurred on south city Muskegon of in front Hile school. US Highway heavily-travelled highway, 31 is a paved portion which is 20 feet wide. The area surrounding heavily-populated the school is a sub- community buildings urban with some commercial interspersed ly plain- The homes. school zone is admittedly marked well-known to the sidewalk extends from the straight defendant. A highway entrance of the school to the berm of the which a crosswalk for children exists. Defendant passing commenced another automobile at about he time entered the marked school zone. injured approximately years “The child was 9-1/2 old at time accident. She testified she edge pavement walked to the waited pass traveling a line of cars front of her in a northerly direction; that she looked and no saw approaching; proceeded other cars that she to walk westerly- highway; across the that she crossed the highway proceeded half of the and had 25 inches beyond the center auto, line when defendant’s traveling southerly in a direction, struck her. the above circumstances “Under contributory negligence the the submitted child’s They apparently jury. believed her version of proximate the accident. The cause was jury. submitted to the The court is of the also contributory negligence plain- opinion that the question of fact under all tiff was a of the circum- jury.” determined stances Damages. Future Question Second: general Relying rule, on the first announced in Michigan Michigan when Brininstool United R. 154'
Co., was handed in down,* defendant judge reversibly giving that the trial erred sists following jury: instruction to the you plaintiff, plaintiff, find for the “Now, *6 Judy, damages pain will to be entitled receive suffering. You will award such sums and also her you find from fair and the evidence will be and rea- compensate pain suffering her for the sonable pain suffering and for such and under date, which, reasonably undergo evidence, the in the shortening she certain .is disfigurement, a future, for such leg or otherwise.” principal injury grievously The hurt. was splintering— a concerned was with which we are extending femur of left the comminuted—fracture hip for a the downwards distance the level of “from fracture was first reduced of about inches.” Such plate surgical and through of metal a instаllation apparently fragments knit had When screws. plate surgeon’s and screws satisfaction, to the per- operation was were removed. This second after over 9 months 6,1952, little formed December January injury. 6, 1953, of accident and the date point Judy slipped the femur and refractured original frac- cause of second fracture. The atrophy surgeon to “the was attributed ture of it.” fracture was the weakness Such bone, of the reduced operation, through in- time a third this medically is of what known the femur stallation intramedullary The rod is made stain- rod. as an upper usually at the end It introduced is less steel. * Boyer’s Estate, re In rule, quoted Brininstool into from The Ecorse, 308, City 303, Mich 552, 556, Kellom v. reads and as follows: a.plaintiff aeeepted . rule entitle generally that “It is the eonsequenees apprehended future damages presently for recover an degree probability of such con- injury, must be such there certainty they to amount will result sequences as to reasonable original injury.” G-ilson Bronkhorst.' through and of the femur is then driven down beyond point marrow canal to and of fracture, parlance thereby lay splinting and in the fracture healing inside the bone judged Later, itself. when satisfactory, operatiоn performed, a final withdrawing point rod at the of intro- ductory surgery. background testimony turn from
We this disclosing surgical disability result and as found at surgeon of trial. the time testified: intramedullary “We removed rod once heal- ing because that always sound, as one was likes to do in children, growth, does interfere with normal August done in she has been subsequently, seen and on our final examination on walking very child she well, with a mild gait. range stiffness of She had normal of motion hips, in both knees ankles. She had normal length growth, the one side—of leg discrepancy with a on —shortness *7 approximately inch, and this 1/2 vary grows during years. will as she the next few you anticipate, “Q. Would that doctor, this dif- leg length permanent condition, ference will abe something adjust or that is that will have to itself? frequently adjusts “A. It itself. Sometimes it may stay permanently, on in which event it’s some- necessary, times if it’s inch, more than an or more actually, gait good may than a half for a inch, it be up growth advisable to slow the in the other side, * * * up. so the other side can catch your opinion, “Q. Doctor, in will this child suffer any permanent impairment leg? of the use of age, any. “A. herAt she should suffer if little, anticipate you “Q. child, that this in the future, Do pain might ture any or discomfort from the frac- suffer leg, doctor? of her a she shouldn’t.” child, “A. she is Since typical question judgment of us Before sufficiency being legal There of evidence. no other. the the issue is whether the sur-
testimony point, quoted and the facts distin- opinions above, geon’s him, from as related call for opinions guished that Fox erred in submitting here ruling Judge Judy’s claimed determination, right the for its jury, disability. pain for future to damages that Judy, with the attested fact start We from definite shorten trial, time of was suffering necessity and the of “when limping of her left ing leg experience I tired.” from this to the We get proceed neces is sometimes surgeon related of the normal up growth” leg “to slow sаry and as up.”* Finally, the other side can catch “so readily surgeon’s testimony, apparent no can tell with fair whether the defi accuracy one known at will disability, nite fact partial present, will itself; years correct whether in ahead required growth treatment retard undergo given treat leg, her normal whether such normal will result. pair ment a sound and limbs presence absence irrespective These facts — injury— attesting a professional opinion permanent question warranted submission to pain future damages claimed Judy’s 286; Root, disability (McDuffie Mich 87 NCCA Co., [14 Toman v. Checker Cab 202]). NS hint not on its facts
Brininstool, did inсidentally, ap- to submit it was improper jury. On consequences to future prehended for decision one was held contrary new the case reversed —for “the twelvers” instructions specific want of more trial —for *8 found, what the Court this is Brininstool In point. n byway tes- the extended medical from of summary, 180): 179, (pp as quoted timony is retarded, [*] nature is not of such explained treatment, record. hy which growth of one leg Bronkhorst. Gilson v. testimony, “Beading amount, seems to us to predict any, which, if No one could effect, to this: super- severally disorders would enumerated vene; produced, normal had an effect condition bеen created, but a injury permanently impairing plaintiff, manifesting health of the itself present likely nervousness, and to manifest itself in during disorder, more the at some time serious nervous probable plaintiff.” life of the apparent misapprehend It that counsel (courtroom place juryroom) or as well as the cir cumstances in which BrininstooVs said rule—of certainty” usually right ap “reasonable —is plied Depending to the testimonial facts. on the proofs given case, the rule warrants either peremptory damages appre instruction no that consequences ap hended future can be or allowed propriate instruction that the damages jury. such must determined In Judy’s this case from which the counsel submitted fact evidence jury scope found, could have within (see King 22), of the rule Neller, 228 Mich pain disability will suffer future original surgical a result fracture and the necessarily treatment she has received. We accord ingly damages hold that the of future for the and not the court. only complete proof,
It is where there is a want of showing tending degree prob to show “such a ability consequences of such as to amount to reason certainty they original able will result injury,” judge justified that the trial either in rеfusing request addressed to allowance of claimed damages granting request future or in that dam ages consequences for claimed future cannot be al Here, requested, lowed. defendant had so he would have become entitled to an instruction con forming in detail with Brininstool's said rule. He *9 353
158 position request in preferred no no such and is point more detailed instructions that assert given. been should Negligence. Contributory On Instruction Third: The apparent question ad moment is final ques 4, which stated defendant’s vanced charge given. jury as paragraph 47.of the tests tion paragraph having quoted said Justice, The Chief (post, 164), account opinion p that on writes in his paragraph language concluding “unless, — negotiated successfully plaintiff had however, the highway portion crossed and hand the the judge “in highway” trial center line of the —the successfully charged crossed if that, effect” being free struck, she was line before center contributory negligence of law. Such a matter reasoning, “in con at its effect” it, I arrives as view para rounding out said want below clusion for by adding: graph which event the “in contributory negligence to be determined of her my general jury instruc in accordance effect). (or to such that score” words tions on unfinished judge admittedly of the trial
discourse technically yet erroneous, unfortunate, if not girl say thereby little did not or instruct he contributory negligence if it found free from (see Mr. Bartlett that she “made it” v. Justice Smith 178) Melzo, the center line. over 177, approached yet which left unsaid—that he Rather, — from the mentioned draws inference defendant part, sickening paragraph. and For cost our unnecessary delay necessary re untoward mind,* read—with reversible trials we refuse to jury charge language aof result —into which instructionally plainly there. In is not pursue suggested our that we should stead, were tried [*] Judy’s July injuries 11,1956. were sustained February 1952. The cases Gilson v. Bronkhorst. practice looking matured at a sound entirety charge find whether isolated its portions error and, so, context-lifted whether constitute such error is reversible. lengthy with the remainder of
Considered *10 repeated charge, containing presently itas does contributory unopposed of the law declarations negligence applied to the facts the case and plaintiffs’ disproof thereof, the not burden of we can- quoted
agree qualifying that the words said paragraph jury 47 eliminated from consideration (“to practical рurposes” all intents and if there jury finding beyond passage he of safe line) charge center the entire remainder of the on subject contributory negligence. charge printed pages. consists of 19 It is a job general only model in and, save in this con sidered was more instance, favorable to defendant might reasonably upon. than he have insisted When judge inquired it “Anything was concluded the trial responded else?”, to which defendant’s counsel request that the defendant’s claim in the case be objection stated and with that the court had instruct subject damages “although ed to of future mortality Nothing tables arе not in evidence.” point Surely, said about the now viewed. if and coun sel had then attributed criticized words of in (they struction were in “alive” the courtroom at time) prejudicial urges he effect now with re spect it fair thereto,* to assume that he would judge’s called the attention such words, open opportunity court or chambers, in order that given. for corrective instruction be * The essence condensed of defendant’s briefed claim such regard judge is that “In effect the trial jury thus told the Judy though negligent even seeing not car, defendant’s she could recover if she had crossed the highway.”, center line рermitted and that “This instruction Judy recover, despite any finding by jury negligent.” that she was Trunk Grand W. case of Kaminski v.
In the recent found occasion Co., 417, 429, Court R. assignment to another con an directed consider jury error of instruction. We technical text-lifted need Ap repeat not was said on occasion. what plying quoted Crane, Mich Labar v. rules from Hayes, 261 Mich 585; and Robertson v. paraphrase if defend of Robertson—that held—in present the “in time, at the observed counsel, ant’s pressed upon us, counsel such effect” error now it to the trial then called would have doubtless judge’s hand, the other attention for correction. On comprehend the and if counsel did not then notice or presently-claimed prejudicial thereof, it would effect appear farfetched that the took to assume controlling instruction criticized words contributory negligence guilty was not line” the center its members found she “crossed prior impact.* *11 er Assignments a doubtful or aimed at of error proper jury an otherwise roneous charge island small consistently approached in this Court. are 136, we Quoting Brueck, Mich Provost v. 434: Dubois, 422, Mich in Bouma v. said charge whole, as a court, taken “Where particu- applicable correctly law as states clearly issue, the fact that defines case; lar and objectionable, inde- considered are when sentences * charge except to tlie counsel must either do not intimate We objection must be made thereof. Neither parts the whole or as fairly error which amounts reversible review that save for to instruction Labar, suggest, following We do of instruction. or failure KaminsM, preferably will do that counsel Robertson and well— jury up for has retired —to call immediate after at chambers possibly any confusing apparent inadvertence or repair as indicаted judge isolatedly employed. ambiguity language trial has We nature, consequent their judge importance of errors of such harmless, part in being attitude as either reversible effect things right yet counsel toward time remains set same when of. jury in the room. v. Bbonkhorst. Gtilson pendent of the does not context, constitute reversible error.” at
On
least
score of occasions this Court has
Examples
Hayes
appear
since so affirmed.
v. Cole
City
City,
man, 338Mich 371 Bathke
;
v.
Traverse
(74
from the context are somewhat indefinite possibly inaccurate. But as whole we think charge jurors applicable advised the of the law to the an case such a manner as enabled them to make intelligent just disposition of the contro- verted issues.” promptly agree
"We would with the Chief Justice judge actually had the trial told the contributory judged should be negligence free from if it pact successfully prior be found that she im- pavement.
crossed the west half of the How- ever, since given no such instruction was other than “in if effect,” all, and since this otherwise inform- charge presented ative proper- submitted the issues ly and in we detail, find that the error claimed, dignity indeed it rise to the of reviewable error, *12 not reversible. plaintiff."
We vote to affirm,with costs to JJ., Smith, Edwards, Voelker, concurred J. with. Black, opinion, {dissenting). of Mr.
Dethmers, C.J. View- the facts these cases. Black states Justice light plain- ing favorable to most the evidence in the considering claimed tiffs, we must in defendant’s as re-empha- right verdicts, I add would to directed walking following: Judy Pritchett, Plaintiff size the east from the front stopped 2 west feet school, pavement, edge looked 20-foot from the west approaching cars a line of south, both north and saw pass, looked them to for from both north and waited approaching, ways again, no automobiles saw again proceeded did not after which she or east, right west crossed the left, either to then look half of the (about step pavement took a or two inches) beyond half the east 25 of the the center line into
pavement, left struck when she was automobile, front fender of which shе had not seen at southbound defendant’s any the im- time before point impact pact. de- big from the A block north passed south- another automobile had fendant’s bound automobile but completely to had returned approached pavement it the west half as school. the most decisions, on line of
Defendant relies Youngblood, holding 337Mich recent Denman v. contributory negli- guilty young children even gence undertaking to walk a matter of law approaching with- vehicles a street front of across out proper maintaining lookout for a reasonable ap- automobile Denman, In thе defendant’s them. proached of the street and was on its side pedestrian. infant Dis- there when struck still plaintiff, tinguishable in which case, instant is the being half and struck, had crossed west before pavement upon where east half entered right or had no southbound automobile defendant’s proofs show, and where he, far as reason plaintiff so might reasonably she assumed *13 163 v. Bronkhorst. Gtilson would be vehicles if she safe southbound even ap looked seen defendant’s automobile had and proaching pavement on the half it west of the after completed passing had of the other southbound automobile аbove such state of as noted. Under question ordinary, facts, the whether an reasonable prudent person and like and under circumstances position plaintiff, in the even had she looked and coming, might seen defendant’s automobile concluded that she not west half of the could cross the pavement plaintiff doing, safety, succeeded place safety, be a hence, thereafter and, negligent whether her failure to so look and see proximate awas and, therefore, cause accident contributory negligence, present a has held to been question disposеd jury, of fact for not to question the court as of law. Rowland v. Dreyfus Brown, 237 570; Daronco, Mich v. Mich 253 Bartling Co., 235; 580; Lawrence v. Dull& 152; Barhman, Leete Sanderson v. 264 Mich Rak v. Lake 274; Gould, 345; 271Mich Traver, v. 308Mich Gibson v. Knoellinger 698;
328 Mich Hensler, Consequently, agree Mich 197. I with Mr. Justice Black that defendant not entitled to directed plaintiff’s verdict because contribu tory negligence was not one law but one of fact jury. to be determined
Defendant and new seeks reversal trial on the ground presumably finding, jury, that a made plaintiff had crossed the center line be- before ing against weight great struck would be pertinent portions evidence. Examination of the testimony persuade does not so us. I do not differ with Mr. Justice Black’s conclu- respect damages. sions with entitling error, Defendant claims reversible him trial, to new in the court’s instructions to the particularly following portion: in the plaintiff, you that the from the evidence find “If caution, Judy, by care and reasonable tbe exercise of automobile as the defendant’s seen should have existing approached circum- under her, plaintiff was not'exer- conditions stances cising her own care and caution reasonable *14 highway, proceed safety, attempting continuing or the on to motor in frоnt of the defendant’s to cross plaintiff the would event, in that then and vehicle, be be entitled to recover contributory negligence guilty would not of damages unless, case, in this successfully negotiated plaintiff the however, the had right portion highway and crossed of the hand highway.” center the line to in- amounted contends, defendant This, the plaintiff structing jury a law, matter of that, the as contributory negligence if she “had free from was portion successfully negotiated right the hand of the highway.” of highway line the the-center crossed jury tailing the determina- the from This resulted n question plaintiff’s actions whether tion of the contributory negligence to act amounted failures jury the center line. that had crossed if found she guilty plaintiff holding court that was the trial A contributory negligence of law would as a matter viewing the evidence because, been erroneous light had she crossed her, favorable to in the most accordingly, above consid- as and, center line jury question un- of fact for one ered, was By token, the same the above-cited authorities. der charge jury that, the court to it error for they plaintiff center crossed the that had found if free law, she as a matter was, in such case line, depriving negligence, cоntributory thus from ques- jury the latter of a determination defendant tion. The jury decision of this deciding it ad- from court refrain and to have the v. Bronkhorst. Gtilson versely law, funda- a matter was as Mm, as plaintiffs. as defendant mental principle urge the familiar Plaintiffs charge as a whole must be considered of a court upon which, sentences error detached will not lie charge, not are the rest of when construed with Hayes objectionable. Mich 371. Coleman, 338 despite difficulty the extended that, here is contributory effect statement of the nature portions negligence of the instruc- in the contained curing upon by plaintiffs the above relied tions prac- thereof to all consideration error, noted jury’s purposes from the eliminated tical intents and in effect, instruction, deliberations the court’s application the case that it had no plaintiff had the center line. found that crossed Nothing in the instructions served to correct may not case, therefore, in which error. This is portion charge that the said only if the rest erroneous charge detached *15 objectionable longer no when construed but charge. controlling It with entire preju- charge, and, erroneous, therefore, rest rights. For dicial defendant’s this reason new eases should be reversed remanded for appeal trial, costs defendant. JJ., Dethmers, concurred with Kelly, Carr J.C. part in the J., took no decision of this
Kavanagh, case.