Deyo v. Detroit Creamery Co., 146

• Decision Date: 02 March 1932
• Docket Number: No. 146,Oct. Term, 1931.,146
• Citation: 257 Mich. 77,241 N.W. 244
• Parties: DEYO v. DETROIT CREAMERY CO.
• Court: Michigan Supreme Court

257 Mich. 77

241 N.W. 244

DEYO

v.DETROIT CREAMERY CO.

No. 146, Oct. Term, 1931.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Macomb County; James E. Spier, Judge.

Action by Gerald Deyo, by his next friend, Arthur Deyo, against the Detroit Creamery Company. Judgment for the plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.A. J. Spaulding and Stevens T. Mason, both of Detroit, for appellant.

Vandeveer & Vandeveer, of Detroit, for appellee.

BUTZEL, C. J.

At about 6:00 p. m. on December 22, 1930, a long truck of defendant Detroit Creamery Company was proceeding in a northerly direction along Third avenue, and had just passed the intersection at Brainard street in Detroit. The truck consisted of a heavy tractor with two trailers attached. The first trailer was so firmly joined to the tractor that they together appeared to be one large truck, to which the second trailer was attached. Each trailer was carrying 24,360 pounds. At the point to which the truck had proceeded, Third avenue is 46 feet in width, with tracks for a single street car line in the center. The street is ‘crowned,’ the surface in the center being 2 inches higher than that along the curb. The trailer resembled covered freight cars, with boxes 17 feet long and 8 1/3 feet wide, with a floor 4 1/2 feet from the ground, and the roof 6 feet from the floor. Each trailer had an iron stirrup about 12 inches square that dropped from the floor, and also had a single door attached by hinges and fastened by a bolt about 2 1/2 feet above the floor of the car or about 7 feet above the pavement. Above the bolt there was a handle sufficiently large for two hands to grasp.

Gerald Deyo, who, by his next friend Arthur Deyo, is plaintiff, was almost 12 1/2 years of age at the time he sustained the injuries claimed to have been due to defendant's negligence. His home was on the south side of Brainard street in the block east of Third avenue. At about the same time that defendant's truck was coming up Third avenue, plaintiff was proceeding along Brainard street in order to make a small purchase for his parents at a grocery store on the west side of Third avenue. When he reached the latter street, he proceeded northerly on the east side to a point about 30 or 40 feet north of the Brainard street intersection, and then started to cross. He had just advanced a few feet from the curb when he stopped in order to permit defendant's truck to pass him. There is conflicting testimony as to just what then occurred. The boy stated that he stood about 2 feet from the easterly curb waiting for defendant's approaching truck to pass; that there was an automobile parked along the east side of the curb about 20 feet north from where he stood and in a direct line with defendant's truck; that after the first trailer had passed the boy, defendant's driver, in order not to run into the parked automobile, swung the truck out into the center of the street, the pavement of which was covered with ice; that, in so doing, he made such a sudden and sharp turn that the second trailer skidded; that the boy held out his arms so as to avoid being hit, and in so doing was knocked down, and the rear left wheel of the second trailer passed over his left leg, completely crushing it, and necessitating amputation. The boy's testimony was corroborated by an eyewitness, who stated that the truck was proceeding at the rate of 15 to 18 miles per hour, and, when its course was suddenly deflected, the rear trailer skidded on the ice, knocked the boy down, and caused the injuries.

Plaintiff claims that defendant's negligence consisted in driving at too rapid a rate of speed on a crowned pavement covered with ice and in sharply turning the truck to the left so as to cause the trailer to skid and thus cause the injuries. Two special questions were submitted to the jury: (1) Whether the truck was proceeding at a rate of speed in excess of 15 miles per hour; (2) whether the boy tried to climb on the stirrup of the trailer. Both were answered in the negative. The jury rendered a verdict in favor of plaintiff. A number of questions are involved on the appeal.

Plaintiff's witness was asked: ‘What would be the effect of a driver pulling his car to the left on an icy street where it is crowned toward the center, as to what would happen to the rear of the car or trailer that was attached to it?’ It was shown that the witness had never driven a trailer truck, and in excluding the question, the court stated: ‘I will sustain the objection. It is a matter I think that counsel and the jury and everyone can draw their conclusions. It is more or less a physical fact, but I don't think we are entitled to ask his opinion.’ The remarks were left unchallenged. The court did not state what the conclusions would be. There was no reversible error under the circumstances.

One J. W. Barker testified on behalf of defendant. He claimed that he was an eyewitness of the accident, and that it was caused by the boy's falling in his attempt to climb up on the trailer. Barker was asked on direct examination whether he had ever made a different statement. Notwithstanding objections by plaintiff, he was permitted to testify how he had been interviewed by an investigator representing plaintiff's attorneys. He accompanied the investigator to a blind pig and was prevailed upon to visit the office of plaintiff's attorneys and to sign and swear to a written statement which belies the testimony given by him. The affidavit was sworn to before one of the...