Bacon v. McKay

• Decision Date: 24 July 1924
• Docket Number: No. 23,April Term.,23
• Citation: 227 Mich. 667,199 N.W. 613
• Parties: BACON v. McKAY.
• Court: Michigan Supreme Court

227 Mich. 667

199 N.W. 613

BACON

v.McKAY.

No. 23, April Term.

Supreme Court of Michigan.

July 24, 1924.

Error to Circuit Court, Kent County; Major L. Dunham, Judge.

Action by Ernest Bacon, administrator of the estate of Roswell B. Bacon, deceased, against John M. McKay. From a judgment of dismissal, plaintiff brings error. Reversed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Irving H. Smith, of Grand Rapids, for appellant.

John M. Dunham and Paul E. Cholette, both of Grand Rapids, for appellee.

SHARPE, J.

Plaintiff reviews by writ of error a judgment entered on a verdict for defendant in an action for personal injuries.

The manner in which the accident resulting in the death of plaintiff's decedent happened is thus stated in the brief of his counsel:

‘On the night of October 19, 1922, at about 6:15 in the afternoon the decedent was attempting to cross Monroe avenue in the city of Grand Rapids, from a westerly direction. He had come along the north side of Sixth street, on the sidewalk at its intersection with Monroe avenue, had stepped off from the sidewalk, running along the north side of Sixth street, onto the pavement of Monroe avenue and was attempting to walk easterly across Monroe avenue to the east curb thereof. He approached to within about two feet of the middle of Monroe avenue, where he stopped and stood still. He remained in this position till the Ford coupé by John M. McKay, the defendant and appellee, traveling at a rate of speed of from fifteen to twenty miles an hour, approached to within ten or fifteen feet of him, when he looked up, started to run to the east, and at the same instant the automobile turned to the east, whereupon the decedent stopped running, and jumped back to the right and was hit by the automobile and thrown to the pavement.'

The court instructed the jury:

‘It is established by evidence beyond contradiction that the defendant himself was negligent upon that occasion.'

The only question to be considered is whether the court properly instructed the jury as to the law governing the contributory negligence of the plaintiff's decedent on the facts here presented. It is urged that ‘there were no eyewitnesses to the accident,’ and that plaintiff was entitled to the benefit of the presumption that the decedent was exercising due care. The statement of counsel clearly shows that the request based on this claim was properly refused.

There is proof in the record that, when decedent reached about the middle of the intersection of the streets, he paused; that, had he not moved or the course of the car been changed, it would have struck him; that, when he ‘looked up’ and saw the approaching car, it was within 10 or 12 feet of him and directly approaching him; that defendant gave no warning of his approach; that he was then traveling at about 20 miles an hour; that decedent at first started to go ahead; that the car at the same time veered to the right; that decedent then jumped back and at the same moment the car turned to the left, and the right fender struck him.

The plaintiff requested the following instruction:

‘I further instruct you that if you find from the evidence that the decedent, having reached the middle of Monroe avenue and then suddenly finding himself confronted with great danger, was justified in doing what to him, under the stress of the moment and without...