Denman v. Youngblood, 52

• Decision Date: 05 October 1953
• Docket Number: No. 52,52
• Citation: 60 N.W.2d 170,337 Mich. 383
• Parties: DENMAN v. YOUNGBLOOD.
• Court: Michigan Supreme Court

Page 170

60 N.W.2d 170

337 Mich. 383

DENMAN v. YOUNGBLOOD.

No. 52.

Supreme Court of Michigan.

Oct. 5, 1953.

Linsey, Shivel, Phelps & Vander Wal, Robert B. Linsey, Grand Rapids, for plaintiff and appellant.

Fred Roland Allaben, Grand Rapids, for defendant and appellee.

Before the Entire Bench.

CARR, Justice.

This action was brought by the guardian of Jo Ellen Denman, a minor, to recover damages for personal injuries sustained by such minor when struck by defendant's automobile. For the sake of clarity, Jo Ellen will be referred to herein as the plaintiff. The accident occurred October 9, 1951, about 4:45 p. m. Plaintiff, who was at the time 8 years and 10 months of age, attempted to walk across Buchanan Street in the City of Grand Rapids, on the north crosswalk of Brown Street, in an easterly, or southeasterly, direction. At the time she was struck she was in close proximity to the center line of Buchanan, a paved street approximately 35 feet in width from curb to curb. The testimony in the case indicates that Brown Street was 27 feet wide. As a result of the impact plaintiff sustained severe injuries which, however, yielded to surgical treatment.

The case was tried before a jury. At the conclusion of plaintiff's proofs defendant moved for a directed verdict, claiming that his negligence had not been established, and that plaintiff was guilty of negligence contributing to the accident, as a matter of law. The motion was granted, the trial judge concluding that both of the reasons urged were well-founded. Plaintiff has appealed, insisting that the issues as to her negligence and that of the defendant should have been submitted to the jury for determination.

In considering the situation presented by the record it must be borne in mind that the testimony is to be construed in a light most favorable to plaintiff. Dasovich v. Longacre, 324 Mich. 62, 36 N.W.2d 215. We think that the testimony relating to the manner in which defendant operated his automobile at the time in question presented factual issues which, if resolved in favor of the plaintiff, might well result in a finding of negligence. The proofs indicated that defendant was driving 25 miles per hour, and that skid marks on the pavement began approximately 12 feet north of the crosswalk that plaintiff was traversing across Buchanan and extended for a total distance of about 34 feet. If plaintiff was walking across the street at the rate and in the manner claimed by her, defendant, had he been keeping a proper outlook for traffic and particularly for pedestrians, could scarcely have failed to see her in time to avoid an accident, or perhaps could have prevented injury to plaintiff by turning slightly to his right. The testimony of the plaintiff and of her father suggests that at the time she started to cross the street, at which time she must have been visible to defendant had he looked, the latter was approximately 100 feet to the north. The skid marks above referred to indicated that the left wheels of defendant's automobile were within a foot of the center line of the street.

There is also testimony in the case indicating normally heavy traffic at the intersection, which was in close proximity to a school and a school playground. Notwithstanding the absence of proof that defendant was exceeding the lawful speed limit, it was still a question of fact as to whether he was under the circumstances driving at too great a speed to permit him to have his car under such control as traffic conditions required. Whether he exercised due care in failing to slacken the speed of his car at such distance to the north of plaintiff as would have permitted him to avoid striking her was, likewise, an issue of fact. Zylstra v. Graham, 244 Mich. 319, 324, 221 N.W. 318; Watrous v. Conor, 266 Mich. 397, 400, 254 N.W. 143; Clark v. Naufel, 328 Mich. 249, 43 N.W.2d 839; Vandenberg v. Prosek, 335 Mich. 382, 56 N.W.2d 227.

Assuming negligence on the part of the defendant, was plaintiff guilty of contributory negligence as a matter of law, barring her right to the relief sought? As before stated, plaintiff, at the time of the accident, was 8 years and 10 months of age. She was in the 4th grade at school. The record justifies the conclusion that she was at least a normal child, both physically and mentally, that she was familiar with the intersection of Brown and Buchanan streets, and that she fully realized the danger of crossing a public highway without keeping an outlook for automobiles that might be approaching. According to her testimony, she had been warned by her parents and also by her teachers with reference to her duty to exercise care under such circumstances.

Plaintiff testified that as she came up to the curb line on the northwest corner of the intersection her view to the north was obstructed by an automobile parked a few feet to her left. She claimed that because of such obstruction she stepped into the street far enough to be able to look around the automobile. She saw defendant's car approaching at a point which she located with reference to a certain residence on the west side of Buchanan. Her father, testifying in her behalf, stated that he had measured from the crosswalk to the location of the car when observed by Jo Ellen, and found the distance to be 100 feet. The making of the observation in the manner stated by her indicates rather conclusively that she had in mind the necessity of avoiding passing traffic. However, she claimed that she thought that she could cross the street in safety...