Baker v. Alt

• Decision Date: 02 February 1965
• Docket Number: No. 60,60
• Citation: Baker v. Alt, 374 Mich. 492, 132 N.W.2d 614 (Mich. 1965)
• Parties: William BAKER, a minor, by his next friend, Harry A. Baker, Plaintiff and Appellant, v. John R. ALT and Square D. Company, a Michigan corporation, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 614

132 N.W.2d 614

374 Mich. 492

William BAKER, a minor, by his next friend, Harry A. Baker Plaintiff and Appellant, v. John R. ALT and Square D. Company, a Michigan corporation Defendants and Appellees.

No. 60.

Supreme Court of Michigan.

Feb. 2, 1965.

Dilley & Dilley, by Robert W. Dilley, Grand Rapids, for plaintiff and appellant.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D Wells, Grand Rapids, of counsel), for defendant and appellee.

Before the Entire Bench.

O'HARA, Justice.

This is an appeal from an order denying a motion for a new trial in an automobile accident case, tried to a jury which returned a no cause verdict.

William Baker, whom we shall refer to as Billy herein, was injured when the bicycle he was riding collided with the automobile driven by defendant Alt. Billy's father, as his next friend, brought the action on his behalf against Mr. Alt and the Square D. Company. As to Square D., the suit was dismissed.

The accident occurred at a street intersection in East Grand Rapids at little after 7:00 a. m. on a Sunday. Billy was riding westerly on Hall street. Mr. Alt, were the intersection square, would have been driving north on Lake drive. His actual direction was roughly northwest. Billy was riding on the wrong side of the street. There was against him at the intersection a red flasher which was cautionary yellow as to defendant Alt. Billy's bike was new. He was attempting to catch 2 other boys, his brother Harry and Chris Nelson, who had preceded him through the intersection, narrowly missing collision with defendant's car. Billy, at the time of the accident, was 6 years, 10 months and 17 days old; his companions were both 9.

The case presents the usual controverted fact issues concerning Mr. Alt's lookout, whether he should have seen what is claimed to have been there to be seen. There are the usual diagrams, measurements and photographs. Distances and speeds are testified to with the usual variations. It is claimed by plaintiff that defendant was guilty of causal negligence as a matter of law. Error is assigned by reason of the trial court's refusal to direct a verdict We do not find the claim meritorious. What defendant would have been able to see down the street upon which the cyclist approached was clearly in factual dispute. There is no question of excessive speed on his part. His attention, he testified, was diverted by the presence of the 2 older boys riding upon bikes on the wrong side of the street and without stopping for the traffic control signal against them.

The question of the driver's negligence under the circumstances was properly for the jury. This question is no less one of fact than the contributory negligence of a plaintiff. See the oft reiterated rule in McKinney v. Yelavich, 352 Mich. 687, 691-692, 90 N.W.2d 883, 885:

'All will agree, of course, that negligence is conduct that fails to measure up to an acceptable standard. The standard now employed by the law is that of a reasonably prudent man acting under the same or similar circumstances. Whether or not the standard has been attained is, normally, a jury question. Only under the most extreme circumstances, those, in fact, where reasonable minds could not differe upon the facts, or the inferences to be drawn therefrom, can the case be taken from the jury. If honest differences of opinion between men of average intelligence might exist the issue should not be resolved by the court alone.'

Plaintiff assigns error also on the ground that the trial court injected into the case the 'emergency' doctrine which had not been pleaded and for which no factual basis existed. We cannot agree. Defendant testified that he observed and was relying upon the red flasher controlling Hall street traffic. When he was about 100 feet from the intersection, the 2 older boys came through the red light. They passed, according to his estimate, within 15 feet of his car. They testified at variance with their earlier deposed version, but, under either, it is apparent that the driver's attention was diverted by their appearance. Mr. Alt admits not having seen Billy nor having applied the brakes until the moment of impact. Whether his observations would have been different in focal point of attention, or whether his management of the vehicle would have been different had the older boys not entered the intersection at the time and under the circumstances they did, were proper considerations for the jury under the instructions as given. Appellant urges strongly that because defendant did not see plaintiff until the moment of impact no emergency in fact existed. We think this argument fails to take into account whether it could have been because of the appearance of the 2 cyclists in the wrong lane and the driver's natural retention of his attention upon them for some period that may have caused his failure to see the third youngster before he did. In actuality, the doctrine of 'sudden emergency' is nothing but a logical extension of the 'reasonably prudent person' rule. The jury is instructed, as was done here, that the test to be applied is what that hypothetical, reasonbly prudent person would have done under all the circumstances of the accident, whatever they were. The trial judge here was meticulous in instructing the jury that the 'emergency' rule could not be considered if defendant in any manner negligently contributed to causing the 'emergency', and, further, that he had to be making proper and reasonable use of his senses under the circumstances that had been testimonially described.

We do not here dilute the doctrine, which is our settled law under the cases cited by appellant, that the injection of an issue into a case not properly present under either the pleading or the evidence is reversible error.

In the instant case the defendant claimed the benefit of the 'emergency' rule and requested instruction to cover it. There was evidence from which the jury could have found the instruction applicable or inapplicable. The instruction as given was correct. We are unable to agree with appellant's second assignment of reversible error.

The third ground urged by appellant presents a question to which meticulous attention must be given. It involves a fundamental substantive rule of law. Precedent is unclear. Our answer is of importance to the jurisprudence of the State.

Appellant submitted the following request to charge:

'I charge you in this case that Plaintiff, at the time of the accident being a minor child of six years of age, he cannot be charged with contributory negligence.'

The court refused the instruction. Appellant properly preserved the claim of error. The court advised counsel that he would allow the question to go to the jury under the authority of Tyler v. Weed, 285 Mich. 460, 280 N.W. 827. If Tyler is to be understood and applied precedentially, it must be read in the light of its related antecedent written 9 years earlier. Easton v. Medema, 246 Mich. 130, 224 N.W. 636.

In Easton there was a 4-to-4 split on the question of whether an infant 5 years and 8 months old could be chargeable with contributory negligence. Justice Potter wrote for the rule he attributed to Daniels v. Clegg, 28 Mich. 32, where the driver of a team of horses was a 20-year-old girl. It was urged by defendant that the minordriver should have been held to the same degree of care that would have been required of her plaintiff-father. The Court rejected that rule and adopted, rather, the test of the degree of skill required by a person of her age and sex. In Justice Potter's opinion there follows immediately after a quote from Clegg an excerpt from Washington & G. Railroad Company v. Gladmon, 15 Wall. (U.S.) 401, 21 L.Ed. 114. Its placement in the decision leads to the erroneous conclusion that it was included in Clegg. The excerpt reads in part:

"Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child three years of age less caution would be required than of one of 7 * * *". Easton v. Medema, supra, 246 Mich. 136, 224 N.W. 638

This quotation nowhere appears in Clegg. This citation and another from Plantza v. Glasgow Corp., 1910 Session Cases 786, reading also in part:

"I reject altogether the idea that a boy of five cannot be guilty of contributory negligence * * *".

Easton v. Medema, supra, 136-137, 224 N.W. 638.

are the seedlings from which the 'no age' doctrine in our State seems at least to have sprung. Carried to its ultimate, it would necessarily result in the conclusion that a creeper or 3-year-old toddler would be held to that degree of care to be reasonably expected of a creeper or toddler of the same age and experience. For this proposed rule there were 4 votes

Justice Fead, though concuring in the reversal and grant of a new trial, dissented as to the contributory negligence rule:

'I concur with Mr. Justice Potter, except in his ruling that the question of plaintiff's contributory negligence was for the jury.

'Regardless of the general principles governing care required of children and the weight and conflict of authority as to the age at which a child may be charged with contributory negligence (45 C. J. 1002), it is settled law of this State that a child under 6 years of age cannot be so charged. Johnson v. City of Bay City, 164 Mich. 251, 129 N.W. 29, Ann.Cas. 1912B, 866, where the child was five years, four months old; Love v. Detroit, Jackson & Chicago Railroad Co., 170 Mich. 1, 135 N.W. 963, the child being five years and five months of age; Beno v. Kloka, 211 Mich. 116, 178 N.W. 646, where the child was five years and eleven months of age, three months older than plaintiff here, and his alleged negligence was similar to that charged against plaintiff.

'Upon this point the opinion of Mr. Justice Potter cannot prevail without overruling these cases. The circuit court properly held, as a matter of law, that, because of her age, p...