Carter v. C. F. Smith Co.

• Decision Date: 03 October 1938
• Docket Number: No. 73.,73.
• Citation: 285 Mich. 621,281 N.W. 380
• Parties: CARTER v. C. F. SMITH CO.
• Court: Michigan Supreme Court

285 Mich. 621

281 N.W. 380

CARTER

v.C. F. SMITH CO.

No. 73.

Supreme Court of Michigan.

Oct. 3, 1938.

Action by William Carter against the C. F. Smith Company to recover damages for being struck by a motor vehicle driven by defendant's employee. Plaintiff appeals from a judgment entered for defendant, notwithstanding a verdict for plaintiff.

Reversed and new trial granted.

Appeal from Circuit Court, Wayne County; Arthur Webster, judge.

Argued before the Entire Bench.

Philip J. Neudeck, of Detroit, for appellant.

Howard Farrell, of Detroit, for appellee.

POTTER, Justice.

Plaintiff brought suit against defendant to recover damages for being struck by a motor vehicle belonging to defendant, driven by its employee. The accident happened on Linwood avenue, between Grand boulevard and Lothrop avenue. Plaintiff, who operated a garage and oil business on the east side of Linwood avenue, between Grand boulevard and Lothrop avenue, was immediately prior to the accident standing outside his place of business. His garage was north of and adjacent to an alley which intersects Linwood avenue in the center between Grand boulevard and Lothrop avenue. The accident occurred in the forenoon. Two automobiles on the west side of Linwook avenue locked bumpers.Plaintiff decided to assist the drivers on the opposite side of the street in disengaging their bumpers. He walked to the east curb of Linwood avenue, looked both north and south, saw the traffic light controlling traffic at Grand boulevard and Linwood avenue was red for Linwood traffic, that traffic was moving on the boulevard, and walked to a point in the center of the street between the two car tracks running north and south on Linwood avenue. While crossing the easterly half of the street, plaintiff did not look south and he reached the center of the street probably in less than two seconds. At the time he looked south, no motor vehicles were coming north on Linwood. No cars were parked on the east side of Linwood. The light at the intersection above referred to changed and traffic on the west side of Linwood avenue was moving in a southerly direction. Plaintiff was on the lookout for southbound traffic. There was no noise to prevent his hearing a signal and he heard no horn or warning sound. While thus standing in the center of the street, he was struck by a truck operated by defendant's agent. There was ample foom behind plaintiff for two cars to pass.

One Neilson, a disinterested witness, testified she was walking east along Lothrop avenue toward Linwood and took a short cut near the corner, toward Grand boulevard, and, having started along a path, heard a crash, looked in the direction of Linwood, saw the two cars together, saw defendant's truck just coming to a stop and a man climbing out, and plaintiff on the car tracks; that she ran toward the man lying on the car tracks; while so running met defendant's driver likewise running toward plaintiff; defendant's driver said ‘I was coming out of the alley to make the turn and I didn't see him, and the rear view mirror must have hit him.’ The trial court, against plaintiff's objection, held this statement made by defendant's driver was not a part of the res gestae and excluded it from the jury. The witness saw the truck while it was still in motion going up to the curb and saw the driver emerge therefrom pale, nervous and frightened.

Plaintiff's injuries were extensive. It is unnecessary, in view of the record, to consider them at this time. Plaintiff had verdict. The trial court entered judgment for defendant notwithstanding the verdict. In this, we think there was error.

(a) In the consideration of the case as it comes to us, the testimony must be viewed in the light most favorable to plaintiff. Negligence is that failure to use that reasonable care and caution which an ordinarily prudent man would use under like or similar circumstances. A pedestrian seeking to cross a street must make reasonable use of his senses of sight and hearing. Molda v. Clark, 236 Mich. 277, 210 N.W. 203. The drivers of motor vehicles have no monopoly of the use of the streets and highways. The rights of pedestrians and of the drivers of motor vehicles in the use of public streets and highways are substantially the same. Each must use them with due regard for the rights of the other. A pedestrian attempting to cross a busy street or highway must frequently wait for traffic coming one way to pass him, then go to the middle of the street and wait for traffic coming from the opposite direction to pass him, and if he does so he is not guilty of negligence as a matter of law. Bosma v. Daniels, 250 Mich. 261, 230 N.W. 199. Such pedestrian hes a right to assume that the driver of a motor vehicle will not run him down and that such motor vehicle driver approaching will give proper warning signal indicating his approach. Reynolds v. Knowles, 223 Mich. 70, 193 N.W. 900. Plaintiff was not guilty of negligence as a matter of law in standing in the middle of the street in question waiting for southbound traffic to clear.

(b) We think the trial court was in error in excluding the testimony of the witness Neilson as to what the driver of defendant's truck said immediately after the accident.

In Lambert v. People, 29 Mich. 71, it was said:

‘The prosecutor swore to being knocked down and robbed, and other witnesses who came up immediately, were allowed to testify that he then told them he had been robbed. It all occurred, according to the testimony, within three minutes of the time when the offense was committed. Such an immediate complaint made of a crime of violence must be regarded as a part of the res gestae.’

In Cleveland v. Newsom, 45 Mich. 62, 7 N.W. 222, plaintiff, walking along the highway, was struck by a vehicle driven by a boy. After plaintiff was struck, the boy stopped the horse and came back and said he didn't mean to do it. The questionwas, whether such statement was admissible. It was said:

‘There was no error in receiving in evidence the statement of the boy that he did not mean to run over the plaintiff. It was made immediately after the collision, and as nearly as possible at the same time. It was as much a part of the res gestae as would have been an exclamation at the very instant the plaintiff was struck.’

In People v. Simpson, 48 Mich. 474, 12 N.W. 662, defendant was convicted of murder and reviewed his conviction on exceptions before sentence, one of which was that the trial court was in error in permitting witness Trollope to testify as to declarations made by the deceased shortly after she received the injury. He testified he lived a block distant from the corner where the shooting occurred, on the opposite said of the street; that he was in the house when he heard the pistol shot in question and ran to the corner where he found a woman leaning against the fence; that he went over as quickly as he could and said to this woman ‘Who shot you, madam?’ and she said it was John Simpson. All this occurred within a very few minutes after the shooting and while the injured person was still leaning upon the fence. It was said [page 664]:

‘Were these declarations contemporaneous with the shooting, and so connected with injury as to illustrate its character? The declaration of a person wounded and bleeding, that the defendant had stabbed her, made immediately after the occurrence, though with such an interval of time as to allow her to go up stairs from her room to another room, was held admissible after her death as part of the res gestae. Com. v. McPike, 3 Cush. 181 [57 Mass. 181, 50 Am.Dec. 727]. The present case resembles very closely Lambert v. People, 29 Mich. 71, where parties came up within three minutes after a robbery, and the complaint then made was held admissible as a part of the res gestae.’

In Joslin v. Grand Rapids Ice & Coal Co., 53 Mich. 322, 19 N.W. 17, plaintiff, driving along the street with a horse and buggy, was negligently run into by one of defendant's servants driving a team with an ice cart. It was said [page 18]:

‘The plaintiff, when upon the stand as a witness,...