178 Mich. 426 | Mich. | 1914
This is an action in tort brought to recover damages for personal injuries claimed to have
The negligence charged in plaintiff’s declaration and relied upon as ground of recovery is failure to comply with the requirements of section 7, subd. 2, of Act No. 313, Pub. Acts 1909, in the particular that the driver of defendant’s taxicab did—
“Approach the plaintiff herein, who was then lawfully in the roadway of the public highway herein-before described, at a much higher rate of speed than ten miles per hour, and did not slow down to ten miles per hour before reaching him, and did not give any warning whatsoever of the approach of the motor vehicle or automobile aforesaid, and did not use any precaution whatever to insure the safety of the plaintiff herein.”
The undisputed testimony shows that on Sunday, May 7, 1911, plaintiff, a teamster 32 years of age, was walking with two companions across Jefferson avenue from the south side, going north on the Beaubien street crosswalk. They were walking abreast; plaintiff being farthest east. Just as they had passed beyond the north rail of the street car track running along Jefferson avenue, a taxicab of defendant’s approached them from the east. JPlaintiff continued forward towards the north curb; his two companions stepping back. He was struck by the front of the taxicab and fell. He at once arose to his feet and proceeded with his companions on their way. The car stopped at or about the time he fell, and the driver dismounted. Plaintiff testifies:
“The driver asked me if I was hurt and I said I was. There were three men in the automobile besides the driver, but I didn’t talk to them.”
He very soon was in communication with legal counsel and on the evening of that day was visited by
Plaintiff’s evidence as to the accident consisted of his own testimony, with an added statement in the record that a witness named William Rowe was examined and cross-examined. His testimony is claimed to have been corroborative but is not contained in the record. The original bill of exceptions is indorsed “O. K.” by plaintiff’s counsel, and the trial judge certifies that it contains substantially all the testimony produced upon the trial bearing upon the questions raised for review.
Plaintiff gave no testimony as to the speed at which
“I looked for any vehicles that might be passing as I crossed from the south side of the street to the north side. I looked again when I was about in the middle of the car track. I looked both east and west, and at the time I saw no vehicles approaching. I was not aware of the fact that an automobile was coming until it was right on top of me. The automobile was going west and was coming towards me from the east. When I saw the automobile I tried to make for the curb but was knocked down, being struck by the front of the car. After I was struck I was taken to the New Daily Hotel. After I was struck the car moved about 35 feet. I heard no warning or horn of any kind. On arriving at the hotel I was treated by Dr. Williams. I went to bed and was confined to my bed for about three months. My side was injured, and my sight; my right eye has failed me altogether. I was struck in right side and my back was injured.”
And on cross-examination:
“I did not have any drinks and was not drunk. My eyes were perfectly clear and I had my wits about me all the time, and there was nothing to interfere with my walking along the street safely and carefully. The streets were not busy on Jefferson avenue, and there were not many vehicles passing at the time I started to cross the street. It was a‘clear day, and a bright day, and the street was comparatively clear. I had a clear view either way. One can look up Jefferson avenue for about a half a mile, and when I got to the north rail of the car track on Jefferson avenue I looked east and could see for about a half a mile and I saw no vehicle coming. The distance from the north rail to the place where I was struck is about 15 feet. When I saw the machine was going to hit me I jumped forward toward the curb. I saw it was going to hit me when it was about 20 feet away; that was when I first saw the automobile. It*430 was about 15 feet away and I tried to jump out of the way.
“Q. How far did you jump?
“A. I could not tell you; the automobile was any way right into me.
“Q. Right into you?
“A. Turned off and shot into me.
“Q. Turned off towards the curb?
“A. Shot into me.
“Q. Turned off this way (indicating) ?
“A. In the curb.
“Q. So you tried to get out of the way and turned around immediately?
“A. They could not get out of the way.
“Q. So .near the curb it could not get out of the way?
“A. When they shot into the curb they was—
“Q. Shot into the curb?
“A. Didn’t hit the curb.
“Q. Very close to it?
“A. Very close to the edge.
“Q. So that from the middle of the road to the point where you were actually struck by the automobile was about five feet?
“A. Yes, sir. * * *
“Q. Kept right on going?
“A. Yes, sir; could not stop it.
“Q. Pushed you along with it?
“A. Threw me over there. * * *
“Q. Where did it throw you?
“A. It throwed me into the middle of the road. He stopped the car about SO feet past where I was struck. The force of the automobile pushed me over into the middle of the road and stopped about five or six feet past me. * *• * I did not waste any time starting my suit. * * * I gave my lawyers the case day after I was hurt. I signed the paper giving my attorney an interest in the lawsuit. * * *
“Q. When you looked to the right or to the east, was the automobile that struck you in sight?
“A. No, sir; not the first time.
“Q. Were the three of you walking together?
“A. Yes, sir.
“Q. Which side were you on?
“A. I was on the right side.
*431 “Q. Right side, outside of the two, to the east of the other two.
“A. To the east of the other two.
“Q. Were either of them hit by the automobile?
“A. No, they jumped the other way.
“Q. They jumped back?
“A. Yes, sir.”
Defendant produced three witnesses to the accident, occupants of the car; the testimony of one being printed in the record with the statement that the testimony of the others is substantially the same. The one testifies that they had been to Belle Isle and were running down Jefferson avenue at about ten miles an hour; that as they approached Beaubien street and first saw the three men on the crossing 45 or 50 feet away they were going not more than five or six miles an hour; that /the driver sounded his horn and two of the men stopped, the one in the middle endeavoring to check the one on the east of him, but that he threw his hands out and kept right on to a point in front of the car, the driver blowing his horn and slowing up all the time and trying to get out of his way until the man was struck; that the fellow just ran into him, and the automobile stopped right there, “maybe it went two or three feet after it hit him; that the one hit did not appear to be looking at the automobile but walked straight ahead with his head down.”
Plaintiff’s own testimony shows that he was a teamster by avocation, engaged in that calling before and after the accident; that he was a man of mature years, familiar with the use and dangers of highways, his sight good, and possessed of all his faculties; that in the afternoon of a bright, clear day he was crossing one of the main thoroughfares of the city, upon which there was at the time no rush or confusion of travel, with two companions, the three walking abreast, he being on the side next to an ap
The extent and nature of plaintiff’s injuries, while matters of serious contention, are within the field of disputed facts to be decided by a jury, if plaintiff was shown to have been in the exercise of due care and free from contributory negligence. It was as essential to the right of recovery for plaintiff to affirmatively show freedom from negligence on his own part as to show negligence on the part of defendant.
Under the conditions described by himself, with good eyesight and his wits about him, it seems impossible that plaintiff could not have seen the danger in time to avoid it, had he been reasonably alert and used his eyes and ears as the average reasonably prudent and cautious man should and would under like circumstances, and as his companions did. Instead of showing absence of contributory negligence, his evidence shows its presence. His testimony shows that the taxicab was on the proper side of the street, and his only proof of negligence on the part of the
Counsel for plaintiff cite Gerhard v. Motor Co., 155 Mich. 618 (119 N. W. 904, 20 L. R. A. [N. S.] 232), and Bouma v. Dubois, 169 Mich. 422 (135 N. W. 322), in support of their contention that plaintiff in crossing the street was not required to be constantly on the lookout, or to stop, look, and listen, as in case of crossing steam or electric railway tracks, and that both the question of defendant’s negligence and plaintiff’s contributory negligence were questions of fact for the jury. His claim that he heard no horn or other warning may be conceded to raise an issue, as against defendant’s testimony that the horn was timely and repeatedly sounded, on the question of the driver’s negligence in failing in that particular, and possibly an inference of his negligence arises from plaintiff’s testimony in other particulars, but plaintiff’s own testimony and the undisputed facts, taken in the most favorable light for him, show that he himself did not make such reasonable use of his senses as an ordinarily prudent and careful person would have exercised under like circumstances. While a traveler on foot passing along or crossing a public highway has the same right to use it as a vehicle of any kind, “pedestrians as well as all others are ‘bound to exercise care according to the circumstances, and especially bound to the alert and watchful performance
In Gerhard v. Motor Co., supra, plaintiff was a boy 14 years old, a “jumper” on a delivery wagon, his work being to deliver merchandise from a delivery wagon to customers along the streets. An automobile of defendant’s passing close to the delivery wagon at an alleged excessive rate of speed struck him in the back and side, dragged him about 66 feet, and seriously injured him. The boy was within 1% feet of his wagon with his back toward the oncoming machine, attending to his duties, and claimed to have recently looked before getting down from his wagon but did not see the automobile which in its course came around a corner from Woodward avenue to the street on which the accident occurred. The driver knew the type of delivery wagon and knew it was the habit of some one with it to get down from it and run into houses to deliver packages. This was the case of a young boy, engaged in his work, obscured by a delivery wagon from which the driver knew deliveries were made, struck by a passing automobile going in the same direction at an excessive rate of speed, and the court held under the conflicting testimony the issues were for the jury.
In Bouma v. Dubois, supra, plaintiff, a woman weighing 225 pounds, was on her way to church in the evening, accompanied by her daughter. It was after nightfall and raining. While attempting to cross Granville avenue, an intersecting highway, she was struck by defendant’s automobile, thrown down, and dragged about 60 feet, receiving serious injuries.
Here, under the undisputed conditions surrounding the accident and eliminating all issues of fact which conflicting evidence raises, plaintiffs own testimony shows that he failed to use his senses and exercise that reasonable degree of care to avoid injury, proportionate to the circumstances which the law makes essential to recovery, and by his own carelessness and negligence contributed to the same.
The judgment is reversed, and a new trial granted.
I think the question of plaintiffs contributory negligence was for the jury.