Buchel v. Williams

• Court: Michigan Supreme Court
• Writing for the Court: BUSHNELL
• Citation: Buchel v. Williams, 273 Mich. 132, 262 N.W. 759 (Mich. 1935)
• Decision Date: 11 October 1935
• Docket Number: No. 76.,76.
• Parties: BUCHEL v. WILLIAMS et al.

273 Mich. 132

262 N.W. 759

BUCHEL

v.WILLIAMS et al.

No. 76.

Supreme Court of Michigan.

Oct. 11, 1935.

Action by Lena Buchel, administratrix of the estate of Adam J. Buchel, deceased, against Alice Williams, Chrystel MacFarlane, Jane MacFarlane and Robert MacFarlane, individually and/or doing business as the MacFarlane Lumber Company. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Appeal from Circuit Court, Kent County; William B. Brown, judge.

Argued before the Entire Bench.

Shields, Silsbee, Ballard & Jennings, of Lansing (Stanley H. Fulton, of Lansing, of counsel), for appellant.

Mason, Alexander, McCaslin & Cholette, of Grand Rapids (L. H. Robb, of Detroit, of counsel), for appellees.

BUSHNELL, Justice.

While walking in a westerly direction across North Grand River avenue, in the city of Lansing, about 10 p. m. on March 24, 1934, plaintiff's decedent was struck by a car owned by defendants Chrystel and Jane MacFarlane, and being driven northerly by their schoolmate Alice Williams. The night was clear, visibility good, and pavement dry; no other auto traffic or pedestrians were near the scene of the accident at the time, the only eyewitnesses being Alice Williams and Chrystel MacFarlane. Two other school girls were asleep in the rear seat and consequently did not testify. The group, which originally included Jane MacFarlane, left Wellesley, Mass., about noon the previous day and spent the night in Buffalo. The next evening they visited with friends at Ann Arbor where Jane remained, the others proceeding on their way to Grand Rapids.

The intersection of North and West Grand River avenues is marked by a stop sign, but instead of stopping, the driver took her foot off the accelerator and crossed at an admitted speed of 20 to 30 miles an hour. Both streets, 40 feet wide, are a part of US-16, a heavily traveled main thoroughfare between Detroit and Grand Rapids. As Miss Williams was passing the north line of the intersection, she discovered some one 25 to 30 feet away on the right side of the roadway about 3 feet from the east curb; she applied the brakes, blew the horn, and swerved to the left, but the right front of the car hit decedent. After stopping, she got out and called for help; the nature of the injury, however, was such that death had either already occurred or took place before decedent reached the hospital.

A trial was had by a jury which found for the defendants. The charge of the court on which plaintiff assigns many of her claimed errors consumes 22 pages of the printed record, in which our attention is directed to the repetition, nine times, of varying explanations of the proposition that the burden of proof was upon the plaintiff.

In Bowmaster v. William H. De Pree Co., 252 Mich. 505, 233 N. W. 395, we had occasion to point out that unnecessary repetition in a charge is argumentative and prejudicial. An examination of this charge brings us to the same conclusion especially in view of the absence of any eyewitness other than defendants.

Since a new trial must be granted, we also note the following: Plaintiff had the right to call upon defendants to testify, and being eyewitnesses, the court properly charged that the question of due care on the part of plaintiff's decedent was one of fact and not of presumption. Richardson v. Williams, 249 Mich. 350, 228 N. W. 766.

Pedestrians are not required to cross streets or highways at designated intersections in the absence of statutory regulations. They have equal rights with automobiles in the use of public highways. People v. Campbell, 237 Mich. 424, 431, 212 N. W. 97. They must, nevertheless, exercise that care which, reasonably prudent persons would use for their own protection and preservation. Korstange v. Kroeze, 261 Mich. 298, 246 N. W. 127.

The ‘assured clear distance’ rule is not confined, as stated in the charge, to the ability to observe fixed objects ahead; it includes moving objects as well.

‘It is not enough that a driver be able to begin to stop within the range of his vision or that he use diligence to stop...