Collins v. Perry
| Citation | 217 N.W. 32,241 Mich. 361 |
| Decision Date | 03 January 1928 |
| Docket Number | No. 73.,73. |
| Parties | COLLINS v. PERRY et al. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Error to Circuit Court, Kent County; Major L. Dunham, Judge.
Action by Kathryn E. Collins against Mrs. D. M. Perry and another. Judgment for plaintiff, and defendants bring error. Affirmed.
Argued before the Entire Bench.Dunham & Cholette, of Grand Rapids, for appellants.
Linsey, Shivel & Phelps, of Grand Rapids, for appellee.
Plaintiff was employed in a store located on Monroe avenue in the city of Grand Rapids. At about 1:30 in the afternoon she had occasion to cross the street. At the point of crossing there was a platform used as a safety zone adjoining the street car tracks, 99 feet long, 4 feet wide, and 6 inches high. It is plaintiff's claim and testimony that she stepped up on this platform; that it was crowded; some street cars were standing there to take on and discharge passengers; and that while waiting for the traffic to clear the automobile owned by defendant Mrs. D. M. Perry and driven with her consent by her daughter, defendant Eleanore Perry, was driven so closely to the platform as to catch her clothing, drag her into the street; her ankle was run over causing a fracture of two bones at or near the same. She was unable to work for some time, and there is testimony of loss of earnings, and considerable suffering. Defendant Eleanore Perry was alone in the car when the accident occurred. She testified that she was driving in the usual course of traffic, in the middle of that portion of the street, which from the curb to the platform was 10 feet and 6 inches wide, and while she did not see plaintiff until about the moment of the accident, the effect of her testimony was that she was not on the platform at all but was out in the street when the accident occurred. The case was submitted to the jury and a verdict for $1,500 was rendered.
1. It is insisted that there was no evidence to take the question of defendant's negligence to the jury; that the happening of the accident alone is not evidence of negligence; and that the plaintiff's case at most rested on conjectures, surmises, and guesses. This court has consistently refused to adopt the rule of res ipso loquitur and has as consistently held that cases may not go to the jury where recovery can only be based on guesses, conjectures, and speculation. But we have also pointed out that there is a difference between conjecture and the weighing of probabilities from the established facts. There was testimony that defendant's car was driven within five inches of the platform; there was testimony tending to show that plaintiff's clothing was caught by it. Manifestly, if plaintiff's clothing was caught by it, that fact is some evidence that the car was driven very close to the platform. It was midday; the platform was a large one and readily visible to any one driving down the street; it was crowded with people. Under the facts disclosed by this record, it cannot be said that no negligence of defendant was proven, and the court did not err in refusing to direct a verdict for defendant on this ground.
2. It is strenuously urged that the court erred in the instructions to the jury on the question of contributory negligence. Error is assigned on the charge as given and the refusal to instruct as requested. The trial judge charged the jury that plaintiff would not be guilty of contributory negligence if she remained on the platform. It may be said that upon the question of contributory negligence the case was made to turn on the question of whether plaintiff stepped down from the platform or not, the court in effect charging that if she did she was negligent. He refused instructions antagonistic to the view entertained in his charge. The platform, 6 inches high, was a safety zone. It was crowded with people. The fact that plaintiff was forced to stand at the edge of the platform was in no wise due to her fault. A safety zone should be a place of safety. We had a somewhat similar question before us in Jarosz v. Geisler, 219 Mich. 283, 189 N. W. 12. In that case there was a dispute as to where the deceased was when struck; this made the question one for the jury, as we held. But in discussing defendant's contention that a verdict should have been directed on the ground of contributory negligence, this court was required to determine the rights of deceased if he was within the safety zone, and it was there said by this court, speaking through Mr. Justice...
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...Co., 1946, 128 W.Va. 564, 37 S.E.2d 281. See also Burger v. Fifth Avenue Coach Co., 1928, 249 N.Y. 582, 164 N.E. 592; Collins v. Perry, 1928, 241 Mich. 361, 217 N.W. 32. Cf. Mosher v. Lamora, 1935, 245 App.Div. 903, 282 N.Y.S. 379; Evans v. Yakima Valley Transportation Co., 1952, 39 Wash.2d......
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...to proper position else they become juristically shopworn. As was said by Mr. Justice Fellows, again for unanimous court, Collins v. Perry, 241 Mich. 361, 217 N.W. 32: '1. It is insisted that there was no evidence to take the question of defendant's negligence to the jury; that the happenin......
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