Church v. Stoldt

Decision Date03 October 1921
Docket NumberNo. 11.,11.
PartiesCHURCH v. STOLDT.
CourtMichigan Supreme Court

215 Mich. 469
184 N.W. 469

CHURCH
v.
STOLDT.

No. 11.

Supreme Court of Michigan.

Oct. 3, 1921.


Error to Circuit Court, Lapeer County; William B. Williams, Judge.

Action by Frank H. Church, administrator of the estate of Merle Church, deceased, against Albert Stoldt. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before STEERE, C. J., and MOORE, FELLOWS, WIEST, STONE, CLARK, BIRD, and SHARPE, JJ.

[184 N.W. 469]

Theo. D. Halpin, of Lapeer, for appellant.

B. F. Reed, of Lapeer, for appellee.


STEERE, C. J.

While driving east along Genesee street in the city of Lapeer, on his way from Saginaw to his home near Imlay City, defendant's touring car struck and fatally injured plaintiff's daughter, Merle Church, a girl 10 years old, as she was crossing Genesee street at its intersection with Main street, along which she was going south on her way home from school. She was carried into the high school building, located at the northwest corner of that crossing, where she died soon after her father and a physician who had been summoned arrived. Under the Survival Act (Comp. Laws, §§ 12383-12403) plaintiff recovered in this action a verdict for her estate of $1,547.08.

The accident occurred on the afternoon of October 17, 1916, shortly after schools had closed for the day, at a time when numerous pedestrians, including school children, were passing that four corners in different directions. The intersection is a busy crossing of two much-traveled thoroughfares. Through traffic between Lapeer, Flint, and Davison passes over it, as well as much local traffic, including taxicabs and other vehicles, going to and from the Michigan Training School. Many pupils, attending the high school located there and a ward school on Main street a few blocks to the north, pass there.

Merle Church was a bright, healthy child,

[184 N.W. 470]

of normal size and mentality for her age, a fourth grade pupil attending the Main street ward school north of Genesee street, south of which she lived. On that day she and a little girl companion, on their way home from school went south together on the west walk of Main street, both having on roller skates. About the time they reached the crossing two teams drawing empty hay wagons were crossing Main street going west along the north side of Genesee street, driven by two brothers named John and Samuel Taylor, who were returning home from delivering their loads at an elevator. John was in front, and his passing checked the progress of persons walking south on Main street. Observing several girls waiting at the north curb of Genesee street for an opportunity to cross, Samuel stopped his team before he reached the crosswalk to let them pass. He did not particularly notice the Church girl nor defendant's auto until about as it struck her, when he saw it pass him and run across Main street before stopping, and at the same time saw the girl lying in the road. He testified that, as he saw the car at and just after the accident, it had in his opinion a speed of ‘twenty miles or better’ when it struck the girl. The speed of the car as it hit the child is variously estimated by other witnesses, from defendant's claim of ‘less than 10 miles an hour’ to ‘from 20 to 25 miles an hour.’ James Daniels, an expreienced driver, who had owned a car of the same make as defendant's for three years and driven from 8,000 to 10,000 miles each year, testified:

‘You could stop that car, driven at 10 miles an hour, on a dift road, inside of 3 feet.’

Defendant's car ran across Main street and beyond before stopping. Measurements from the crosswalk where the girl was struck to the point where witnesses testified the car stopped showed the distance to be over 90 feet. Defendant testified that as soon as he hit the girl he stepped on both brakes and tried to stop as quick as he could. On cross-examination he answered:

‘If I was only going 10 miles an hour, I can't account for it going the length of the car after I applied the brakes.’

He did, however, during his testimony, account for his car finally stopping east of Main street by the explanation that he did stop it immediately, but ‘got kind of excited, and I got up and forgot to pull the lever, and the car went into gear again, and she ran down hill across Main street, down where the car finally stopped, before I got squared around and stopped it.’

This was the second car defendant had owned. He was an experienced driver, had driven past that corner before, and knew there was a schoolhouse located there. On that day he was driving with all side curtains on the left side of his car towards the schoolhouse he was passing. Of the situation and his knowledge upon the subject he testified in part as follows:

‘When I approached that crossing, I didn't see anything in the street; but I saw the kids playing around there. I saw a couple of teams coming. I passed the first near the walk there somewheres. I was on the right side of the road, and I should judge there must have been 6 or 7 feet, anyway, away from the team I passed. I didn't see nothing on the road as I approached the crosswalk...

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