Gayden v. Arabais
|291 N.W. 42,292 Mich. 651
|15 March 1940
|GAYDEN v. ARABAIS.
|Supreme Court of Michigan
OPINION TEXT STARTS HERE
Action by Dora Gayden against Steve Arabais for injuries sustained when struck by defendant's automobile. From a judgment for the plaintiff defendant appeals.
Appeal from Circuit Court, Wayne County; James E. Chenot, judge.
Argued before the Entire Bench.
Vandeveer, Vandeveer & Haggerty, of Detroit, for appellant.
Smauel L. Weller, of Detroit (Miles H. Knowles, of Detroit, of counsel), for appellee.
On the morning of January 26, 1937, the plaintiff, a colored lady, 29 years of age, disembarked from the back door of a street car traveling east on Warren Avenue in the City of Detroit. Plaintiff walked around behind the street car, intending to cross to the north curb of the street. According to her testimony, she stopped as she crossed the north rail of the car track and looked to her right where she saw defendant's car approaching about 115 feet away. Believing she had plenty of time to cross, she started toward the curb, a distance of some 22 feet from the north rail. She watched defendant's car approach as she walked, and when she reached a point about 10 feet from the curb, realized that the car was coming towards her in excess of the ordinary rate of speed. She walked faster but defendant's automobile swerved toward the curb and hit her with the left front fender and bumper. The testimony as to the speed of the car varies from 15 to 35 miles per hour.
Defendant claims that plaintiff ran from behind the street car when his car was only 20 feet away; that he applied his brakes immediately and turned the car to the right; and, that the car went only three or four feet after the impact. Plaintiff was taken by defendant to a hospital where X-rays were taken of her right leg which proved to be broken. The leg was placed in a cast and she was taken home. She returned to the hospital on February 25, 1937 and was not discharged until June 28, 1937, having had the leg amputated in the interim.
On January 28, 1937, two days after the accident, an adjuster for the insurance company with which defendant was insured called on the plaintiff at her home. He gave her $75 and obtained her signature to a paper, which was in terms a general release.
Mr. Huhn, the adjuster, testified relative to the transaction that he had come merely to take a statement from plaintiff concerning the accident, and as he was leaving plaintiff asked about a settlement; that they agreed upon the sum of $75; that he filled out a general release form which she presumably read before signing; that plaintiff understood that $75 was all she would ever receive; and that the release was witnessed by two persons. Mr. Huhn gave plaintiff a draft for $75 which she kept for two days before cashing. The record also shows that plaintiff told two police officers that she had made a settlement for $75. Neither party called Ward Lott, a witness to the release, to the stand although he was present in court under defendant's subpoena.
Plaintiff brought this action on October 19, 1937, for the injuries sustained. Defendant answered, alleging both contributory negligence on the part of plaintiff and the special defense of ‘release’. The trial court refused to direct a verdict for defendant at the close of plaintiff's case, as well as after all the proofs were in. The case was submitted to the jury, although the court reserved judgment under the Empson Act. The jury rendered a verdict for plaintiff in the sum of $2,700, less the amount she had been paid. The trial court denied defendant's motion for judgment non obstante veredicto and defendant appeals.
The first question involved is whether defendant was entitled to a directed verdict or a judgment non obstante veredicto because of plaintiff's alleged contributory negligence. On appeal, the evidence must be considered in the light most favorable to plaintiff's right of recovery. Arnell v. Gordon, 234 Mich. 140, 207 N.W. 825;Walker v. McGraw, 279 Mich. 97, 271 N.W. 570;Burton v. Yellow & Checker Cab & Transfer Co., 283 Mich. 384, 278 N.W. 106.
Defendant contends that as a matter of law plaintiff was guilty of contributory negligence because she abandoned a place of safety and casually entered into a zone of obvious danger and deliberately walked into the path of a rapidly approaching automobile. But upon reviewing plaintiff's testimony in the most favorable light, we find that she saw the car approaching about 115 feet away and that she believed she had ample time because she had often crossed at the same place in safety when cars were much closer to her, and that not until she was in a place of danger did she realize that defendant's car was coming faster than at an ordinary speed. Whereupon, the curb being the closest place of safety, she hastened to reach it. Furthermore, she testified that instead of passing behind her where there was plenty of room, defendant's car swerved toward the curb and struck her. Under these circumstances we cannot say that she was guilty of contributory negligence as a matter of law.
Defendant attempts to differentiate the case of Burton v. Yellow & Checker Cab & Transfer Co., 283 Mich. 384, 278 N.W. 106, 107 from the instant case,...
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