Ebel v. Bruzewski, s. 19

Decision Date11 March 1941
Docket NumberNos. 19,20.,s. 19
Citation296 Mich. 654,296 N.W. 715
PartiesEBEL v. BRUZEWSKI (two cases).
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Separate actions by Alexander Ebel and Emma Ebel against Chester Bruzewski for injuries sustained when struck by defendant's automobile. From judgments for plaintiffs, defendant appeals, and the appeals are disposed of in one opinion.

Judgments affirmed.

Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Argued before the Entire Bench.

Arthur J. Kinnane, of Bay City, for defendant and appellant.

Clark & Henry, of Bay City (Paul Harvey, of Bay City, of counsel), for plaintiffs and appellees.

WIEST, Justice.

These two cases involve the same issues, except as to the measure of damages and, upon trial before the court, each plaintiff had judgment.

Shortly after twelve o'clock the morning of November 27, 1938, plaintiffs were riding in an automobile in Bay City when there was a collision with another car. They were not injured but their car was damaged and came to rest at the street curb, with the rear nearly the length of the car in the street. Police officers appeared upon the scene to investigate and, while plaintiffs were standing in the street near the rear of their car talking with one of the officers, defendant's automobile came along, struck and injured them.

Upon review defendant contends that plaintiffs were guilty of contributory negligence in needlessly standing in the traveled portion of a busy city street, in the nighttime, beside their unlighted car, with their backs toward traffic approaching upon an ice covered way, and they failed to establish exercise of due care under the circumstances.

The fact that defendant's automobile struck plaintiffs and not their automobile shows that plaintiffs were in the street beyond the length of their car. This, however, is not decisive of any issue in the case. Plaintiffs were at least close to the rear of their car and were there answering to an investigation conducted by the police relative to the collision which threw their car to the street curb. During the progress of such investigation the policeman was questioning them at the position on the pavement where they were struck and, if they had given the matter of their position consideration, they might well have rested assured that, while answering the policeman, they might rely upon his protection against traffic on the street. At least, the fact they were being interrogated by the policeman was enough to distract their attention from their position.

The circumstances of plaintiffs being where they were struck bars a holding that they were guilty of contributory negligence as a matter of law and, we think, the...

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10 cases
  • Otts v. Brough
    • United States
    • Idaho Supreme Court
    • December 14, 1965
    ...him off his guard, the question of negligence is for the jury. Flattery v. Goode, 240 Iowa 973, 38 N.W.2d 668 (1949); Ebel v. Bruzewski, 296 Mich. 654, 296 N.W. 715 (1941); Mayzlik v. Lansing Elevator Co., supra; Wills v. J. J. Newberry Co., 43 Cal.App.2d 595, 111 P.2d 346 (1941). See also ......
  • Patterson v. Pennsylvania Railroad Company
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 5, 1956
    ...work in which he is engaged and the attention which such work requires. See Reedy v. Goodin, 285 Mich. 614, 281 N.W. 377; Ebel v. Bruzewski, 296 Mich. 654, 296 N.W. 715 in both these opinions, Mr. Justice McAllister, now a member of this court, concurred; Mayala v. Underwood Veneer Co., 281......
  • Rovinski v. Rowe
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 30, 1942
    ...a matter of law for failing "to look down the tracks during the minute he was at work in trying to remove the truck." In Ebel v. Bruzewski, 296 Mich. 654, 296 N.W. 715, the holding was that the plaintiffs, who had been struck by defendant's automobile, were not guilty of contributory neglig......
  • Molitor v. Burns
    • United States
    • Michigan Supreme Court
    • June 27, 1947
    ...where approaching cars could be seen a mile in either direction. At the close of plaintiff's case, defendant, relying on Ebal v. Bruzewski, 296 Mich. 654, 296 N.W. 715, asked for a directed verdict on the ground that plaintiff had nor established Bard's freedom from contributory negligence.......
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