Denman v. Johnston
| Decision Date | 24 April 1891 |
| Citation | 48 N.W. 565,85 Mich. 387 |
| Court | Michigan Supreme Court |
| Parties | DENMAN v. JOHNSTON. |
Appeal from circuit court, Kent county.
Turner & Carroll and Norris & Norris, for appellant.
Godwin, Adsit & McKnight, (Robert M Montgomery, of counsel,) for appellee.
The plaintiff's declaration contains two counts. The first alleges that, while plaintiff was traveling in a proper and careful manner upon a public highway in the township of Grand Rapids, Kent county, on the 28th of July, 1889, the defendant carelessly, wrongfully, and unlawfully drove a team of horses attached to a vehicle over him with great force and violence and plaintiff was knocked upon the ground and grievously hurt, and a certain hernia with which he was afflicted was greatly aggravated, etc. The second count sets forth that plaintiff was traveling in a proper and lawful manner upon the public highway, which was then and there thronged with numerous people, making noise and tumult, and defendant then and there carelessly, wrongfully, and unlawfully drove another team and vehicle at a furious pace and with great force and violence against and over plaintiff etc., as in first count. Upon the trial the plaintiff introduced evidence tending to prove that the time when he received his injuries was Sunday, between 2 and 4 o'clock in the afternoon of July 28, 1889; the place was Reed's Lake, a popular summer resort about two miles from the city of Grand Rapids; and the occasion was as he was crossing the public highway in a diagonal direction from Ferris' saloon to Godfrey's. These saloons were from 160 to 180 feet apart on opposite sides of the street, which was 66 feet wide. The team driven by defendant approached him from the rear upon a brisk trot; and his testimony tended to show that the violence of the shock was such as to carry him forward a few feet, when he fell between the horses, and when they were brought to a stand he crawled out either just in front or in rear of the horse's hind feet. There were other men crossing the highway at the time, some of whom preceded and others were following plaintiff. His testimony also tended to show that there were a number of other vehicles in the street passing to and fro, but at the time of the accident the only team at that particular place was the one driven by defendant. The plaintiff's testimony also showed that north of the place where the accident occurred, and near Godfrey's, there was a cross-walk made of plank, connecting with a foot-path running along the east side of the highway. The defendant introduced testimony tending to prove that he was driving north along the east side of the highway; that his horses were on a walk; that as he approached Ferris' saloon he saw several persons on the stoop, among whom was the plaintiff; that he saw the plaintiff step off from the stoop and start to travel north along the side of the highway, and just at the time he reached him the plaintiff started across the street, and stepped in front of his team; that as soon as he saw the danger of a collision he pulled up his horses, and called out, "Hey, there!" but it was too late to prevent the accident; that the neck-yoke struck plaintiff, and he fell between the horses; that he stopped as soon as possible, and plaintiff crawled out from under his horses; that the place of the accident was not over 20 feet from the saloon.
The court, in his charge to the jury, instructed them correctly upon the rights and duties of travelers in a public highway, and also upon the respective theories of the parties as presented in the case by their testimony, and left the questions of fact to the jury as they should find they were established by the testimony. Error is assigned upon those portions of his charge which read as follows: "If the defendant discovered that the plaintiff was traveling in a course in which, if the defendant pursued the course in which he was driving, he would come in collision with the plaintiff, and knew, or had good reason to believe, that the plaintiff was unaware of his approach, and if by the use of ordinary care, after discovering this, the defendant could have prevented the injury to the plaintiff, and did not use such care for that purpose, he is chargeable with reckless injury, and the plaintiff is entitled to recover, even though the jury are of the opinion that he, the plaintiff, may have been negligent in being in that position." Again, in speaking of the duty of the plaintiff to exercise ordinary care in entering upon the traveled part of the highway, the learned judge said: "If he neglected to use such care, and was injured by the defendant, who was also traveling in the same highway, he cannot recover in this action, notwithstanding you should find from the evidence that the defendant was also negligent, unless you should find from the evidence that the defendant saw the plaintiff in or approaching a place of danger, and knew or had good reason to believe that the plaintiff was not aware of the danger, and saw the plaintiff in such a position of danger in time to prevent, by using ordinary care, the injury to the plaintiff, and did not make use of that care for that purpose." These instructions were outside of the issues made by the pleadings. The declaration contained no count charging defendant with willful, wanton, or reckless negligence, and defendant was not called upon to come into court prepared to meet such a charge.
The declaration alleged that, while the plaintiff was traveling in the highway in a proper and careful manner, the defendant carelessly, wrongfully, and unlawfully drove his team against him at a furious pace, and with great force and violence knocked him down. Much of the plaintiff's testimony was directed to the circumstances which tended to show that he was in the exercise of ordinary care. Although the witnesses introduced in his behalf who saw the collision testified that they did not see him look to the south before entering upon the highway or afterwards, until there was an outcry of danger, which occurred at the instant he was struck by the team, he testifies himself that he looked to the south before he entered upon the traveled portion of the road, and did not observe the team approaching; neither did he hear the team approaching, as he was "hard of hearing." The plaintiff has characterized the negligence imputed in the allegation that defendant drove his team at "a furious pace" as being careless, wrongful, and unlawful; but he has not alleged it to have been reckless, wanton, or willful. It was held in Carter v. Chambers, 79 Ala. 223, that driving rapidly through a street of a city is not per se culpable negligence. In Brennan v Town of Friendship, 67 Wis. 223, 29 N.W. 902, it was said: "Riding upon a highway at a high rate of speed is not necessarily negligence, although it is a circumstance to be considered by the jury in passing upon the question of negligence." And in Crocker v. Ice Co., 92 N.Y. 652, the court said: ...
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