Cooke v. Brown

• Decision Date: 01 December 1961
• Docket Number: Nos. 12 and 13,s. 12 and 13
• Citation: 365 Mich. 172,112 N.W.2d 120
• Parties: William K. COOKE, Next Friend of Edward A. Cooke, a Minor, Plaintiff and Appellant, v. Walter G. BROWN, Individually and as Guardian ad Litem of William L. Brown, a Minor, Defendant and Appellee. William K. COOKE, Plaintiff and Appellant, v. Walter G. BROWN, individually and as Guardian ad Litem of William L. Brown, a Minor, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 120

112 N.W.2d 120

365 Mich. 172

William K. COOKE, Next Friend of Edward A. Cooke, a Minor, Plaintiff and Appellant, v. Walter G. BROWN, Individually and as Guardian ad Litem of

William L. Brown, a Minor, Defendant and Appellee.

William K. COOKE, Plaintiff and Appellant, v. Walter G. BROWN, individually and as Guardian ad Litem of

William L. Brown, a Minor, Defendant and Appellee.

Nos. 12 and 13.

Supreme Court of Michigan.

Dec. 1, 1961.

Maile, Leach & Silver, Detroit, Judson L. Levin, of counsel, Detroit, for appellant.

Garan, Lucow & Miller, Detroit, for appellee.

Before the Entire Bench.

BLACK, Justice (for reversal).

Two consolidated negligence cases are before us. They arose directly and derivatively from an intersectional collision of plaintiff Edward Cooke's motor scooter with defendants' automobile. Defendants had verdict and judgment. Plaintiffs appeal.

During final twilight of a summer evening plaintiff Edward Cooke, then aged 14, rode his motor scooter east on 6 lane Erie street, in Flat Rock, toward right angle intersecting Seneca street. His course was straight and fairly close to the south curb of Erie, and the approach-rate of speed of his scooter is accepted by the parties as being between 20 and 25 miles per hour.

At the same time defendant William L. Brown, then aged 17, was driving his father's automobile in a westerly direction on Erie. He turned left, in the intersection, with intention of driving south on Seneca. His approach-rate and turning-rate of speed--similarly accepted--was reasonably slow.

When defendants' automobile had nearly completed the turn and was about to go beyond the extended south curb line of Erie, the motor scooter collided with the right side thereof. The point of impact, against the automobile, was between the single right door and the right rear wheel. Edward was seriously injured. These suits resulted.

Claimed as directly applicable to the reviewable issues are 3 statutes. Defendants refer to C.L.S.1956, § 257.702, requiring of a scooter rider proceeding in like circumstances that his machine be equipped with a lighted headlamp 'of sufficient intensity to reveal a person or a vehicle at a distance of not less than 100 feet,' and say the proof presented a question of fact whether the headlamp of the scooter was lighted at the time or maintained (if lighted) in such manner as to render it reasonably discernible to the oncoming defendant driver. Plaintiffs refer to C.L.S.1956, § 257.650 and C.L.S.1956, § 257.648, requiring of a motorist intending to make an intersectional left turn that he 'yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard,' and correspondingly requiring of such motorist that he 'first see that such movement can be made in safety.'

On strength of the adduced proof and the last 2 mentioned statutes plaintiffs present the primary thrust of their appeal; that the trial judge on timely motion made by them should have instructed the jury that the defendant motorist was guilty of causal negligence as a matter of law. Such request for peremptory instruction was denied. Plaintiffs, assigning error in such regard, cite subsequently decided Nabozny v. Hamil, 361 Mich. 544, 106 N.W.2d 230.

Secondarily, plaintiffs insist that certain jury instructions constitute reversible error. These specifications of error will be treated in order as stated.

First: In my view Judge Piggins was right when he refused to instruct that plaintiffs had so thoroughly supported their basic burden--that of proving the declared charge of causally connected negligence--as to leave no doubt of the defendant motorist's guilt. That motorist may or may not have violated the traffic safety statutes on which plaintiffs rely. Whether he did depended largely on disputed proof, notably that which was offered to prove or disprove the fact of a lighted, or properly lighted and focused, headlamp on the motor scooter. The testimony of the defendant driver was not of valueless negative character (See the carefully considered analysis of this question, written by Mr. Justice Fellows for the unanimous Court in Lambert v. Minneapolis, St. P. & S. S. M. Railway Co., 209 Mich. 107, 176 N.W. 453 and followed as settled guide in Miller v. Manistique & L. S. Railway Co., 234 Mich. 184, 207 N.W. 809 and Dalton v. Grand Trunk Western R. Co., 350 Mich. 479, 486, 87 N.W.2d 145). He said that, immediately prior to commencement of his turn toward Seneca, he looked ahead for the approach of an oncoming vehicle or vehicles; that he saw none--vehicles or lights therof--, and that 'If he had his headlights on I would have seen them.' There was other testimony, less direct it is true, tending to show that the headlight of the scooter was not 'on'; also that it was 'cocked' downward, prior to the event in question, the better to give brighter light on the near pavement ahead. This latter testimony was given by the plaintiff rider himself. Such testimony, with other proof tending to show compliance or want of compliance with section 257.702 aforesaid, was for jury consideration under proper instruction. That being the indicated conclusion upon due and defendant-favored view of the testimonial record, plaintiffs had no right to demand...