Burnash v. Compton, 69.

• Decision Date: 02 June 1941
• Docket Number: No. 69.,69.
• Citation: 298 N.W. 408,298 Mich. 70
• Parties: BURNASH v. COMPTON et al.
• Court: Michigan Supreme Court

298 Mich. 70

298 N.W. 408

BURNASH

v.COMPTON et al.

No. 69.

Supreme Court of Michigan.

June 2, 1941.

Action by Sim Burnash against Jenevieve E. Compton and Lewis P. Compton for injuries received by plaintiff when struck by a motor vehicle owned by defendant Jenevieve E. Compton and driven by defendant Lewis P. Compton. From a judgment notwithstanding the verdict in favor of defendants, the plaintiff appeals.

Reversed and judgment entered in the amount found by the jury.

Appeal from Circuit Court, Genesee County; Paul V. Gadola, judge.

Argued before the Entire Bench.

Paul O. Strawhecker, of Grand Rapids, for appellant.

Guy W. Selby, of Flint, for appellees.

SHARPE, Chief Justice.

Plaintiff brought an action against defendant to recover damages for injuries received by being struck by a motor vehicle owned by defendant Jenevieve. E Compton and driven by her son Lewis P. Compton.

The accident occurred about the hour of 9:30 p.m., of December 23, 1939, while plaintiff was crossing Industrial avenue in the city of Flint. Industrial avenue runs north and south. St. Johns street runs diagonally northeast and southwest and dead-ends into Industrial avenue. At the intersection of St. Johns street and Industrial avenue, there is located a flagman's shanty. On the evening in question plaintiff was on duty as the flagman. At about the hour of 9:30 p.m., he had occasion to cross Industrial avenue. On the west side of Industrial avenue and across from the flagman's shanty, there are several stores and buildings; and on this occasion a car was parked at the curb on the west side of the street nearly opposite the shanty. About this time, defendant Lewis P. Compton, driving his mother's car, was traveling south on Industrial avenue and as he was about to turn out and pass the parked car he came in contact with plaintiff, who was crossing the street. Plaintiff was severely injured as a result of the collision.

The cause came on for trial and a jury rendered a verdict in favor of the plaintiff in the sum of $5,500. Subsequently, defendants made a motion for judgment notwithstanding the verdict and the same was granted by the trial court.

[1] Plaintiff appeals. The only question in this case may be stated as follows: Was plaintiff guilty of contributory negligence as a matter of law?

‘Citation of authority is unnecessary to establish the rule that on appeal from a judgment non obstante veredicto in favor of the defendant, the evidence must be viewed in the light most favorable to plaintiff.’ Marth v. Lambert, 290 Mich. 557, 563, 287 N.W. 916, 917.

With this rule in mind, we find that plaintiff produced evidence to show that Industrial avenue runs north and south; that it intersects with St. Johns street; that a flagman's shanty is located between the angle of the intersection and near the point of the V; that Industrial avenue at the place where the accident occurred is 26 feet wide; that 170 feet north of the shanty, Industrial avenue angles approximately 15 degrees to the east; that the width of the car parked on Industrial avenue is 5 feet 11 inches; that there is a 4 foot sidewalk on the west side of Industrial avenue; that there is no sidewalk on the east side of Industrial avenue; that people traveling southwest on St. Johns street intending to cross to the west side of Industrial avenue usually cross a little to the north of the shanty; that Lewis P. Compton, the driver of the car involved, was familiar with the location of the crossing and knew that this was the usual place for pedestrians to cross; that on the night in question, plaintiff went to the east curb of Industrial avenue, stopped and looked to the north and seeing no lights of cars approaching from that direction, looked to the south and saw that no cars were approaching from that direction; that he then stepped into Industrial avenue and continued to look south for northbound traffic; that he continued...