Arvo v. Delta Hardware Co.

• Decision Date: 18 June 1925
• Docket Number: No. 18.,18.
• Citation: 204 N.W. 134,231 Mich. 488
• Parties: ARVO v. DELTA HARDWARE CO. et al.
• Court: Michigan Supreme Court

231 Mich. 488

204 N.W. 134

ARVO

v.DELTA HARDWARE CO. et al.

No. 18.

Supreme Court of Michigan.

June 18, 1925.

Error to Circuit Court, Houghton County; John G. Stone, Judge.

Action by Mary Arvo, administratrix of the estate of Oscar Arvo, deceased, against the Delta Hardware Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. G. R. Empson, of Gladstone, and Galbraith & McCormack, of Calumet, for appellants.

B. H. T. Burritt, of Hancock, for appellee.

SHARPE, J.

Plaintiff's decedent and his son, Hannes, were traveling east in a one-horse wagon, used for delivering milk, on College avenue, in the village of Houghton, on the evening of September 5, 1922. Near 8 o'clock they reached the intersection of College avenue and Lake street. A stop was here made, and the boy got out to deliver some bottles. The head of the horse was then about at the west curb of Lake street. The deceased then turned to the north on the west side of the intersection, and when his horse had passed off the avenue his wagon was struck by an automobile belonging to the defendant company, and driven by one of its employees, the defendant Frasher. The wagon was thrown or pushed a distance of about 75 feet. Arvo sustained injuries from which he soon after died.

The plaintiff, as administratrix of his estate, brought this action to recover the damages incident to his injury and death. The declaration contained a count alleging ordinary negligence of the driver and one alleging after-discovered negligence. Defendants' motion for a directed verdict was taken under advisement, and the cause submitted to the jury, who found in her favor on the first count in the sum of $4,440. A motion for judgment non obstante veredicto was overruled, and judgment entered on the verdict. Defendants review the judgment by writ of error. The assignments relate to the refusal to enter judgment for defendants, to a paragraph of the charge as given, and to the refusal to give a request preferred by defendants.

1. The motion to direct was founded on the claim that deceased was guilty of contributory negligence as a matter of law. At the time of the collision, the deceased did not have a light displayed ‘in a conspicuous place on the left side’ of his wagon, as required by Act No. 126, Pub. Acts 1921. The trial court instructed the jury, in effect, that the failure of the deceased to comply with the statute was negligence on his part. He, however, left it to the jury to determine whether there was any ‘causal connection between the statutory violation or the doing or omitting to do the act and the injury.’ This instruction but stated the law.

‘The principle is that, to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury.’ 1 Cooley on Torts (3d Ed.) 269; Spencer v. Phillips & Taylor, 219 Mich. 353, 189 N. W. 204;Beebe v. Hannett, 224 Mich. 88, 194 N. W. 542.

The night was dark and rainy. Whether a light on the left side of the wagon would have been visible to Frasher, after the deceased turned to the left to cross the street, was, we think, a question for the jury. Beebe v. Hannett, supra; Martin v. Herzog, 228 N. Y. 164, 126 N. E. 814.

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