Billingsley v. Gulick

• Citation: 233 N.W. 225,252 Mich. 235
• Decision Date: 02 December 1930
• Docket Number: No. 52.,52.
• Parties: BILLINGSLEY v. GULICK et al.
• Court: Supreme Court of Michigan

252 Mich. 235

233 N.W. 225

BILLINGSLEY

v.GULICK et al.

No. 52.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Allegan County; Fred T. Miles, Judge.

Suit by Mabel Billingsley, administratrix of the estate of Gurnard Billingsley, deceased, against Verle Gulick and another. Judgment for plaintiff, and defendants bring error.

Reversed, and a new granted.

Argued before the Entire Bench. Leo W. Hoffman and Clare E. Hoffman, both of Allegan (Carl E. Hoffman, of Holland, of counsel), for appellants.

Howard, Kimball & Howard, of Kalamazoo, for appellee.

WIEST, C. J.

Plaintiff's decedent, at night, crossed a paved highway, at a curve or bend, to serve a waiting automobile with a quart bottle of oil, and thereafter was seen standing upon the gravel at the edge of the pavement and at a point where, it is claimed, the light of an automobile approaching from the south would plainly disclose him. A Ford roadster approached from the south struck, and instantly killed him. Defendants claim that the deceased was crossing the pavement about 25 feet ahead of their automobile when the driver first saw him, and it was then impossible, even by swerving the car to the left, to avoid striking him. If the deceased was standing upon the gravel shoulder at the side of the pavement when struck, then defendants were guilty of negligence and he was not guilty of want of care. If he left the gravel and was crossing the pavement with his head down and not looking for on-coming traffic from the south, then, to say the least, the question of his want of care was for the jury, and the court was in error in giving the following instructions: ‘Mr. Billingsley is dead, and there is in the law a presumption that he assumed due care in coming to and being in the place he was when hit. This presumption is overcome only by testimony of eye witnesses whom you believe, showing acts by deceased which constitute a lack of due care on his part before he was hit. The testimony of the defendants only as to the acts of deceased at the moment he was struck is not sufficient to overcome this presumption unless they saw him a sufficient time in advance so that they might have controlled their car.’

Defendant Gulick testified: ‘When we first saw him (the deceased) he was right on the right hand edge of the pavement, going north. He kept right on walking across the road. He didn't look our way. When the car struck him it was about the center of the pavement itself. Mr. Lohrberg made an effort to avoid striking him. He turned to the left of the road as quick a anybody could, toward the center. At no time was the car off the pavement and on the gravel, before the accident.’

Defendant Lohrberg testified:

‘When the car had straightened out and we could see him, I could see him about 25 feet ahead, I imagine 25, 30 feet.

‘Q. And where was he when you first saw him? A. He was about three or four, about four feet from the edge of the pavement on the right hand edge.

‘Q. What was he doing? A. Walking across the road, to my left. He didn't look toward the car at all. He had something in his right hand that looked like an oil can or bottle. When I first saw him I swerved to the left, put on my brakes, but I didn't have time to stop there, I just swerved. He kept right on going, walked right into the side of the car.’

This testimony, if accepted by the jury, disclosed negligence on the part of the deceased. The case is not one where the driver of the automobile did not see the pedestrian until struck by the car. See Petersen v. Lundin, 236 Mich. 590, 211 N. W. 86. It is not the rule that defendants, to rebut a presumption of care on the part of the deceased, must have...