200 Mich. 209 | Mich. | 1918
Plaintiff brought this action against Harold C. Cornelius and Russell Cornelius for the negligent killing of decedent Andrew W. Johnston, her husband. Upon the first trial the jury disagreed as to defendant Russell Cornelius and the court directed a verdict as to defendant Harold C. Cornelius. To review the judgment rendered on the verdict so directed plaintiff sued out a writ of error from this court. The case will be found reported in 193 Mich. 115. This court there affirmed such judgment. A statement of the facts of the case will be there found and it will only be necessary to here state such facts as became important upon the second trial, and as bear upon the questions here involved. This we will do as we proceed.
Upon the second trial, which proceeded against Russell Cornelius alone, a verdict for the defendant was arrived at by the jury and plaintiff prosecutes this writ of error to review the judgment entered thereon.
On the second trial, as on the first, it appeared that the automobile driven by the defendant on the evening in question when he ran over the deceased, causing the injuries which resulted in his death, was owned by his father, Harold C. Cornelius, and that defendant had taken it without the knowledge and consent of his father and in violation of his directions and instructions. It is now claimed by the plaintiff that, such being the case, defendant violated the provisions of Act No. 33, Pub. Acts 1909 (3 Comp. Laws 1915, § 15431), that his use of the car so taken was a felony,
Nor are we persuaded that Act No. 33, of the Public Acts of 1909, of itself gives a right of action to pedestrians injured upon the street; they do not belong to the class for whose protection the law was passed. Plaintiff cannot claim any benefit from it. It is said in 1 Thompson on Negligence, § 12:
“ * * * And it may be stated as a general proposition — though there may be difficulty in some cases in applying it — that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claim*213 ing the damages, and often not then, the question depending upon judicial theories and surmises.”
See, also, Taylor v. Railroad Co., 45 Mich. 74; Richards v. Waltz, 153 Mich. 416; Syneszewski v. Schmidt, 153 Mich. 438; Mairs v. Railroad Co., 175 N. Y. 409; Lepard v. Railroad Co., 166 Mich. 373; Lindsay v. Cecchi, 3 Boyce (Del.), 133; Latham v. Railway Co., 164 Ill. App. 559.
Error is also assigned upon the instruction by the court that the locality where the accident occurred was a residence section of the city. The court, among other reasons for so instructing the jury, stated that upon the former trial it was conceded that this was a residence section of the city. Such being the case, the trial court committed no error in this instruction. This was a judicial admission and the court was not in error in considering it conclusive on the plaintiff on the second trial. Connor v. Railway Co., 168 Mich. 29.
The defendant, driving a heavy' Cadillac car, ran over the deceased about nine o’clock in the evening of November 28, 1913, on Michigan street in the city of Grand Rapids, causing such serious injuries that death resulted some two weeks later. The evening was dark and it was raining. Deceased was escorting a young lady who had called at the home of himself and plaintiff to the street car line which ran east and west on Michigan street. It is undisputed that a man named McMillan was standing in the street near the track awaiting the approaching car. It is in dispute the distance decedent and his companion had proceeded in the street when they were struck by the car driven by defendant; plaintiff’s witnesses giving testimony tending to show that they were quite near Mr. McMillan out in the street; defendant’s, that they were much nearer the curb. The trial court, after calling the attention of the jury to the statutory duty of
“Under the second section of the State law to which your attention has been called, it is claimed by the plaintiff that the defendant in approaching this crossing, was also approaching a Mr. McMillan who was standing in the highway waiting for this west-bound street car, and that therefore the defendant should have given reasonable warning of his approach and slowed down to a speed not exceeding ten miles an hour. That is substantially the provision which I have read to you. The question for the jury to consider and for the court to instruct the jury upon particularly, is in relation to the warning provided by this statute. The statute provides that a reasonable warning shall be given to a person standing in the street, if there be one. I instruct you that under the undisputed, testimony, it appears that the defendant, as he approached this crossing, saw Mr. McMillan standing near the street car track, and also that Mr. McMillan saw the approaching automobile. Under these circumstances, the automobile having the usual lights upon it at the time, there was, as a matter of law, a reasonable warning given to Mr. McMillan who was standing waiting to take this car. So in its last analysis, these two sections of the State law as applied to this, case, relate and will be confined to the speed iyith which the automobile was approaching this crossing, the one provision limiting the speed to fifteen miles an hour, and the other provision limiting the speed to ten miles, per hour,- as I understand it, under the circumstances shown in this case.”
In no part of his charge did the court instruct the jury that defendant owed a duty to a pedestrian in a public highway to give an audible warning of his approach. The instruction given and the failure to instruct here noted could lead the jury to but one conclusion, viz.: That defendant owed no duty to decedent if he was in the street to give other warning of his approach than by his lights, and that an audible
“Upon approaching a person walking in the roadway of a public highway, or a horse or horses, or other draft animals, being ridden, led or driven thereon, a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach, and use every reasonable precaution to insure the safety of such person or animal, and in case of a horse or horses or other draft animals, to prevent frightening the same.”
It is also provided by subdivision 1, section 6, of the same act (section 4812), as follows:
“Every motor vehicle, operated and driven upon the public highways of this State, shall be provided with adequate brakes sufficient to control the vehicle at all times, and a suitable and adequate bell, horn or other device for signaling, and shall, during the period from one hour after sunset to one hour before sunrise, display at least two lighted lamps on the front and one on the rear of such vehicle, which shall also display a red light visible from the rear.”
By the latter provision the automobile must not only be provided with lights in the night time but must also have “a suitable and adequate bell, horn or other device,” and the purpose is stated to be “for signaling.” When we read the two provisions together, as we must do, it is clear that the legislature contemplated an audible warning when approaching pedestrians in the streets and highways. This is empha
Plaintiff moved for a new trial, urging among other grounds, that the verdict was against the weight of the evidence. The motion was overruled and error is assigned thereon. We are not persuaded that the verdict is against the weight of the evidence. There was a sharp conflict of testimony on the material points, and we are not impressed that we should disturb the judgment on this ground.
We have examined the other errors assigned, and find them without merit.
For the error pointed out the judgment must be reversed with a new trial. Plaintiff will recover costs of this court.
