Colvaruso v. Stroh Brewery Co.
| Decision Date | 06 April 1942 |
| Docket Number | No. 79.,79. |
| Citation | 301 Mich. 245,3 N.W.2d 261 |
| Parties | COLVARUSO v. STROH BREWERY CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Personal injury action by Paul Colvaruso, guardian of Sebastian Colvaruso, a minor, against the Stroh Brewery Company. From the judgment, plaintiffs appeal and the defendants cross-appeal.
Affirmed.Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.
Before the Entire Bench, except WIEST, J.
William J. McBrearty and Manuel Zechman, both of Detroit, for plaintiff, appellant, and cross-appellee.
Ernest P. La Joie, of Detroit, for defendant, appellee, and cross-appellant.
At 2:55 p. m., June 7, 1939, at a point approximately 8 to 9 feet south of the northerly curb of Waterloo Street in the block between St. Aubin Avenue and Dubois Street, Detroit, Michigan, Sebastian Colvaruso, then three days under four years of age, was severely injured by coming into contact with the left front wheel and tire of a large Stroh Brewery truck which was being driven in an easterly direction on Waterloo Street at a rate of speed of about 7 miles per hour. Plaintiff, the father of the little boy, brought this suit as guardian. Plaintiff's claim is that the truck ran into the boy; defendant's is that the boy ran into the truck. At the outset, it may be said that, as a matter of law, a boy of such tender years cannot be guilty of contributory negligence, and the testimony on behalf of plaintiff must be looked upon in the light most favorable to him, inasmuch as a judgment non obstante veredicto was rendered after the jury brought in a verdict of $12,500 against defendant.
The case arouses one's sympathy. The boy was very badly hurt, hovered between life and death for some time, was hospitalized for many months, suffered a compound fracture of the right tibia, and the skin and fatty tissue of his left leg were denuded to the bone. He always will have an unsightly looking leg and may have some permanent disability in his walk, but with the possibility that he may outgrow it. It is our duty to judge the case by established rules of law, although we can readily see how sympathy might have affected the verdict of most jurors if the case were submitted to them. None of the witnesses saw the accident except one John Bova, the driver of the truck. One Minnie Brymer, who resided on the north side of Waterloo Street, in the third house west of the corner of Dubois Street, only saw the little boy's head as he came in contact with the vehicle, but she did not see any other part of him at that time, nor did she see how he came in contact with the truck. Bova testifiedthat he saw the little boy two feet south of the north curb of Waterloo Street just as the boy was emerging from between two parked automobiles, and that from the moment he saw the boy up to the instant he ran into the truck, the boy traveled about 7 feet and the slow-moving truck traveled only about 4 feet. This interval was only a fraction of a second or two as the truck was moving at 7 miles per hour. Bova testified that he stopped the truck almost instantaneously after he saw the boy run into it. All the witnesses agree that the truck stopped almost instantly after the collision. Bova testified that, allowing for reaction time, he slammed on his brakes as soon as he saw the boy. The three witnesses for plaintiff were in the immediate vicinity of the accident. They gave testimony at the trial tending to locate the boy in an almost stationary, confused position in the pathway of the oncoming truck, thus placing responsibility for striking the boy upon the driver of the truck. But all of these three witnesses denied having seen the boy at the time of the actual impact. It cannot be said, therefore, that the testimony of any of these witnesses contradicts that of Bova, whom plaintiff called as an adverse witness under the statute and by whose uncontradicted and unimpeached testimony he was therefore bound. Each of these witnesses lost sight of the boy before the moment of impact. Witness Asa Spence stated his head was turned the other way from the truck, which had passed by him immediately before. Witness Evelma Greer stated that she was watching the two other children who had shortly before run from the north to the south curb of Waterloo Street. Witness Minnie Brymer stated she was looking between two parked cars and only saw the little boy's head. Bova alone testified that he saw the little boy at the final moment before the impact, although the final instant of impact, when the little boy hit the side of the tire, must have been invisible to Bova from his elevated position in the driver's seat because of the shortness of the child. The record leaves in absolute obscurity the answer to the question whether the boy was hit by the left front wheel of the truck and thrown around it to the left side, or whether he ran headlong into the side of the left front tire, but whichever took place, either hypothesis is consistent with Bova's testimony as to how the child ran into the truck. The physical facts further support Bova's testimony.
There is some dispute as to whether the accident occurred east or west of a space on the north side of Waterloo Street opposite an alley which runs into and ends on the south side of Waterloo Street. Bova and his two helpers testified it occurred west of the alley. The other witnesses testified that it occurred east of the alley. The more important question is, how did the accident occur, rather than the exact place. The only testimony in regard to the way in which it took place is that of Bova, the sole witnesses to the actual accident.
Plaintiff attempts to charge Bova with negligence. Plaintiff's three witnesses saw the two children about the little boy's age who crossed Waterloo from north to south before Sebastian tried to do likewise, and plaintiff bases his claim of negligence on Bova's admission that he did not see these little children. Negligence, however, is a failure to perform a duty to plaintiff's ward. Where a witness, who was not impeached, testified that he performed such duty, even if he proceeded to testify that, shortly before the accident, he did not perform it to others similarly situated, the latter testimony does not destroy the force of the former, which in the absence of either contradition or impeachment exonerates the witness of the charge of negligence.
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