Frye v. City of Detroit

• Decision Date: 04 January 1932
• Docket Number: No. 117.,117.
• Citation: 239 N.W. 886,256 Mich. 466
• Parties: FRYE v. CITY OF DETROIT.
• Court: Michigan Supreme Court

256 Mich. 466

239 N.W. 886

FRYE

v.CITY OF DETROIT.

No. 117.

Supreme Court of Michigan.

Jan. 4, 1932.

Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.

Action by Floyd Frye, as administrator of the estate of Domenic Tata, deceased, against the City of Detroit. From judgment for defendant, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.Colombo, Colombo & Colombo, of Detroit, for appellant.

Raymond J. Kelly and James S. Shields, both of Detroit, for appellee.

WIEST, J.

The night of October 17, 1927, Domenic Tata, plaintiff's decedent, was standing in a safety zone in Hamilton avenue in the city of Detroit, waiting for a street car. An automobile struck and threw him upon the street car track where he lay unconscious, with blood flowing from cuts in his head. While so lying on the track, the fender of a street car picked him up, carried him some distance before the car stopped, and, when released, it was found that he had sustained a compound fracture of the left leg just above the ankle, and his head and face were crushed. He moved his left leg and lips and moaned, but died within a few minutes from traumatic cerebral hemorrhage caused by the crushing injuries to his head.

Suit was brought against the auto owner, his driver, and the city of Detroit, owner and operator of the street railway system. No service of summons was had upon the auto owner or driver. At the close of plaintiff's proof, the court directed a verdict for defendant city. Plaintiff seeks reversal.

The court was of opinion that it was impossible to determine whether the injuries, causing death, were inflicted by the automobile or by the street car, and declined to let the jury guess or conjecture upon the subject. The evidence established the fact that either the automobile or the street car, or both, inflicted the mortal injuries. But the evidence did not go beyond that, or furnish facts from which, by reasonable inference, it could be said, apart from mere guess or conjecture, that the street car, rather than the automobile, inflicted the injuries causing death.

It is evident that the traumatic injuries to the head had origin, in whole or in part, prior to contact with the street car. Where the body lay upon the track there was a pool of blood. This indicated that Mr. Tata had some head or face wound, inflicted by being thrown upon the track by the automobile, for the fracture of his leg did not bleed, and he had no other cuts. The thud of the automobile against his body was heard by persons two hundred feet away. He was struck by the automobile with great force, thrown upon the pavement, and there lay huddled up while the street car approached from a distance of eight blocks. Were such injuries mortal? No one can tell.

It is a well-established rule that, in order for plaintiff to recover against the city, it was necessary to show the negligence of defendant city and the proximate cause of death. Upon the second issue, plaintiff did not, and could not, inform the jury of the injuries inflicted by the street car or those inflicted previously by the automobile. It was necessary for plaintiff to submit proof, from which the jury could draw the reasonable inference that the death of plaintiff's decedent would not have occurred out for the negligence of defendant city. The plaintiff must go beyond showing that such might have been the case.

The rule, in negligence cases, is well stated in Ramberg v. Morgan (Iowa) 218 N. W. 492, 498: ‘True, it was not necessary for plaintiff to prove the causal connection by direct evidence, but substantial evidence must be furnished upon which a reasonable basis for inference may be made. The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts...