58 N.W. 663 (Mich. 1894), Mullen v. City of Owosso

Citation:58 N.W. 663, 100 Mich. 103
Opinion Judge:LONG, J.
Attorney:[100 Mich. 104] George L. Keeler (John T. McCurdy, of counsel), for appellant. Odell Chapman, for appellee.
Judge Panel:GRANT and MONTGOMERY, JJ., concurred with LONG, J. HOOKER, J. (dissenting). McGRATH, C.J., concurred with HOOKER, J.
Case Date:April 17, 1894
Court:Supreme Court of Michigan

Page 663

58 N.W. 663 (Mich. 1894)

100 Mich. 103




Supreme Court of Michigan

April 17, 1894

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by Mary E. Mullen against the city of Owosso for personal injuries.

From a judgment for defendant, plaintiff brings error. Affirmed.

[100 Mich. 104] George L. Keeler (John T. McCurdy, of counsel), for appellant.

Odell Chapman, for appellee.


The plaintiff, a woman about 34 years of age, was riding with Mr. Pond in a private carriage drawn by one horse along a public street in the city of Owosso. Overtaking Mr. Sanders, who was driving in the same direction, Mr. Pond attempted to pass him. Sanders was driving at a rapid rate, and Mr. Pond, in attempting to pass, started his horse rapidly forward. The parties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His carriage was overturned, and plaintiff thrown out and injured. The proofs are clear that Mr. Pond knew that a building was being erected by the side of this street, and that a mortar box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was incumbered by such materials, and thought that somebody was liable to get hurt there. Yet, in view of this knowledge, he carelessly drove his horse at the rate of more than six miles an hour in the street, contrary to the ordinances of the city. The court directed the jury: "If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to recover, unless you find that Mr. Pond knew of the obstruction to a portion of this street, [100 Mich. 105] and heedlessly drove over the obstruction; then he would be guilty of gross negligence, and plaintiff could not recover." Again the court said: "If the plaintiff in this case voluntarily entered the private conveyance of Mr. Pond, and voluntarily trusted her person and safety, in that conveyance, to him, by voluntarily entering into the private conveyance of Mr. Pond, she adopted the conveyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that Mr. Pond was negligent, in driving fast, the plaintiff could not recover." The jury returned a verdict in favor of the defendant.

The only question presented by the brief of plaintiff's counsel is whether the negligence of Mr. Pond is imputable to the plaintiff. This question was settled in the affirmative in Railroad Co. v. Miller, 25 Mich. 274 (decided by this court in 1872), and has not since been departed from. Counsel claims that some doubt has been cast upon this doctrine by some of the later decisions, and cites Battishill v. Humphreys, 64 Mich. 503, 31 N.W. 894. In that case a child three years of age was run over by an engine upon a railroad operated by defendant, as receiver. The question was raised whether the negligence of the parents in permitting the child to go upon the track was imputable to the child. Mr. Justice Morse held that such negligence was not imputable to the child. The other justices expressed no opinion upon that point. In Shippy v. Village of Au Sable, 85 Mich. 280, 48 N.W. 584, the question whether the negligence of the parents was imputable to a child three years of age was again presented; and, upon a full hearing, it was the unanimous opinion of the court that such negligence was not imputable to the child. Other cases of like character have been presented to this court...

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