Dempsey v. Miles

Citation342 Mich. 185,69 N.W.2d 135
Decision Date09 March 1955
Docket NumberNo. 66,66
PartiesJewel DEMPSEY, Administratriix of the Estate of Duane S. Norton, deceased, Plaintiff and Appellee, v. Clyde E. MILES and Myrtle Hutchins, Defendants and Appellants.
CourtSupreme Court of Michigan

Alexis J. Rogoski and Robert Bunker Rogoski, Muskegon, for defendants and appellants.

Harold H. Smedley, Muskegon, for plaintiff and appellee.

Before the Entire Bench.

CARR, Chief Justice.

The traffic accident from which this case has resulted occurred on Marquette avenue in the city of Muskegon on July 15, 1952. At the time plaintiff's decedent, Duane S. Norton, a boy 6 years and 4 months of age, was undertaking to cross said street from the south curb to the north side. An exhibit returned to this Court with the record, pursuant to stipulation of counsel, indicates that the distance across said street from curb to curb is approximately 29 feet. In proximity to the center line of the pavement Duane was struck by an automobile driven by the defendant Miles in an easterly direction. It is conceded that the car was owned by the other defendant, and that it was being driven on the occasion in question with her knowledge and consent. As a result of the impact plaintiff's decedent sustained injuries resulting in his death on October 7, 1952.

Claiming that defendant Miles was negligent in the operation of the automobile, plaintiff brought suit, as administratrix of the estate of decedent, to recover damages. The declaration alleged that defendant driver was operating his car on the left side of the center line of the street, at an excessive rate of speed under the circumstances, and without keeping a reasonable and proper outlook for the safety of others on the highway, and particularly for the safety of Duane. Defendants filed their answer denying the allegations of negligence as set forth in the declaration.

At the conclusion of plaintiff's proofs on the trial in circuit court, counsel for defendants moved for a directed verdict on the ground that plaintiff had failed to show that defendants were guilty of actionable negligence constituting the proximate cause of the accident and the injuries sustained by her decedent therein. Decision of the motion was reserved, defendants put in their proofs, and the cause was submitted to the jury which returned a verdict for plaintiff in the sum of $3,736.68. Thereupon defendants moved for judgment in their favor notwithstanding the verdict of the jury. The motion was denied, and judgment was entered for the plaintiff in accordance with the verdict. Thereafter defendants moved for a new trial, alleging that they were entitled to the directed verdict and, further, that errors prejudicial to them had occurred in the course of the proceeding. The motion was denied, and defendants have appealed from the judgment entered and from the order denying the motion for a new trial.

The first question for consideration is whether defendants were entitled to a directed verdict at the conclusion of the testimony offered by plaintiff in support of the averments of her declaration. In considering such question we have in mind the general rule, repeatedly declared by this Court, that the testimony is to be construed as strongly as possible in plaintiff's favor. Anderson v. Kearly, 312 Mich. 566, 20 N.W.2d 728; Bramer v. Ames, 338 Mich. 226, 61 N.W.2d 160. The record discloses that the accident in question here occurred about 3 o'clock in the afternoon, that it was a clear day, and the pavement was dry. The testimony of several witnesses for plaintiff indicates that other children, some of them older than Duane, preceded him across the street, that he remained briefly on the south side, and then started to follow his companions. He was running, but the record does not indicate how rapidly, other than as may be inferred from his age.

As above stated, the driver of the automobile, hereinafter referred to as the defendant, was proceeding in an easterly direction. It was plaintiff's claim on the trial that he struck Duane on the north side of the center line of the road. A witness for plaintiff, Mrs. Fannie Anderson, noted defendant's car prior to the accident and stated that it was 'about in the middle of the road.' Another witness testified that the car came to a stop partly over the center line and at a distance of approximately 100 feet from the scene of the accident. One of the boys who had preceded Duane across the street saw the impact, and expressed the opinion that it was 'About in the center.'

The witness Archie Dempsey was operating a truck in a westerly direction on Marquette at the time of the accident. He testified on the trial that he saw defendant's car approaching from the west, that it was 'coming down the center of the road', and that he noticed children along the curb on the south side of Marquette. The following excerpt from his testimony indicates the claim of this witness as to where Duane was when struck by the car.

'Q. Now, then, as this boy left the south curb and started across the street, how far across the street did he get? A. He had----

'Q. Before the car struck him? A. He had already reached past the center line.

'Q. Could you tell me, you mean by that he was north of the center line? A. Yes, sir.

'Q. Could you tell me how far north of the center line he was when he was struck? A. Approximately about three feet.

'Q. Three feet, and could you see the part of the Miles' car or the car that was coming towards you, that struck the boy? A. Yes, sir.'

Witness Dempsey also testified that following the accident he approached defendant's car, that he said to defendant that he ought not to have hit the boy, that he had plenty of chance to stop, and that defendant answered:

'I know it, but I never saw the child until I heard the thud and I looked up in the car and I saw him flying.'

With reference to the speed of the automobile, the witness testified as follows:

'Q. Do you have an opinion as to whether this car was traveling over or under twenty-five miles an hour? A. Yes, sir, I would say he was definitely going over twenty-five miles an hour.

'Q. That is your opinion? A. Yes, sir.

'Q. Would you care to give how much over twenty-five miles an hour it was going? A. No, I couldn't estimate how fast over he was going.'

A member of the city police force arrived at the scene of the accident shortly after it occurred. He testified as to pacing off certain distances, including the distance from the point where Duane undertook to cross the street and the beginning of certain skid marks on the pavement. According to his testimony, assuming the correctness of other testimony on behalf of plaintiff, defendant's car traveled approximately 45 feet after striking the boy before the brakes were applied, and then continued for about 37 1/2 feet, as indicated by the length of the skid marks. Other testimony introduced by plaintiff indicated that Duane was struck by the left front portion of defendant's car, and that he was thrown through the air for some distance.

Was the testimony referred to sufficient to render the question of defendant's negligence a matter for the jury? Immediately prior to striking the boy defendant Miles passed an automobile standing at the curb. He denies, however, that he crossed the center line of the road, and the width of the pavement, as indicated by the exhibit above referred to, was apparently sufficient to render it unnecessary to do so. However, we have positive testimony from one of plaintiff's witnesses, corroborated to a certain extent by others, that the boy was struck on the north side of the center line. There was testimony also that defendant admitted that he did not not see Duane prior to the impact. If such was the fact, the inference clearly follows that he was not keeping a reasonable and proper outlook for others on the highway,...

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6 cases
  • Requests of Governor and Senate on Constitutionality of Act No. 294 of Public Acts of 1972, In re
    • United States
    • Michigan Supreme Court
    • June 18, 1973
    ...statutory duties and the rule of negligence Per se, Holmes v. Merson, 285 Mich. 136, 140, 280 N.W. 139 (1938); Dempsey v. Miles, 342 Mich. 185, 192--193, 69 N.W.2d 135 (1955). Any number of fact situations easily come to mind where a person might be found not 'negligent' by a jury under com......
  • Johnson v. Corbet
    • United States
    • Michigan Supreme Court
    • November 13, 1985
    ...it are before the jury to assess. Dalton v. Grand Trunk W.R. Co., 350 Mich. 479, 486, 87 N.W.2d 145 (1957); Dempsey v. Miles, 342 Mich. 185, 193, 69 N.W.2d 135 (1955); Sebright v. Moore, 33 Mich. 92, 93 (1875). While it is entirely possible that Selden's testimony was so lacking in material......
  • Stewart v. Rudner
    • United States
    • Michigan Supreme Court
    • September 4, 1957
    ...of the facts, construe the controverted testimony most favorably to plaintiff under the assignments of error here made. Dempsey v. Miles, 342 Mich. 185, 69 N.W.2d 135.) Consequently, when she and her husband consulted the defendant, Dr. Paul Bunyan, licensed in Michigan as an osteopathic ph......
  • Johnson v. Hughes
    • United States
    • Michigan Supreme Court
    • December 2, 1960
    ...the jury on the question of defendants' negligence, we think this is not such a case. Plaintiff, in turn, suggests that Dempsey v. Miles, 342 Mich. 185, 69 N.W.2d 135, is more in point. Each case must stand on its own From the proofs of physical facts in this case, as above outlined, a reas......
  • Request a trial to view additional results

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