Gibbard v. Cursan

• Decision Date: 19 December 1923
• Docket Number: No. 11.,11.
• Citation: 225 Mich. 311,196 N.W. 398
• Parties: GIBBARD et al. v. CURSAN et al.
• Court: Michigan Supreme Court

225 Mich. 311

196 N.W. 398

GIBBARD et al.

v.CURSAN et al.

No. 11.

Supreme Court of Michigan.

Dec. 19, 1923.

Error to Circuit Court, Sanilac County; Watson Beach, Judge.

Action by William Gibbard, Administrator of the estate of Beatrice Gibbard, deceased, against Edmund Cursan and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Vandeveer & Foster, of Detroit, for appellants.

Clink & Williams, of East Jordan (A. B. Simonson, of Sandusky, of counsel), for appellee.

CLARK, J.

Plaintiff's intestate, Beatrice Gibbard, 13 years of age, in the afternoon of January 28, 1921, while walking on a paved country highway, on her way home from school, was overtaken, struck, and fatally injured by a Ford truck of defendant Brown City Co-operative Company, driven by its servant, defendant Edmund Cursan. She died about three hours later. The pavement was 18 feet wide, a main thoroughfare, and, on the day in question, dry and in good condition, and had shoulders of earth 3 or 4 feet wide on each side. It runs north and south. It is not said that there was a sidewalk at the place in question. Plaintiff had testimony that school girls were walking north on, and near, the right side of the pavement at the time. Beatrice and one Garnet Manchor were ahead. Louise Hill and Edna Lowe were about 150 feet behind Beatrice and Garnet. There was testimony that Louise and Edna were walking ‘at the edge of the pavement,’ that Beatrice was walking on the left of Garnet, and that both were ‘about a foot from the edge of the pavement,’ and that ‘Garnet was toward the outer edge of the pavement, not far from the edge. Beatrice was immediately west of Garnet, walking on the edge of the pavement.’ Another truck, carrying wheelbarrows, shovels, etc., going north, making noise, passed the girls, and at the time that Beatrice was struck was distant 6 rods, 10 rods, or several hundred feet, according to the varying testimony of witnesses. There was testimony that when the Ford truck overtook Louise and Edna it was on the right side of the pavement and gave no warning of its approach. Louise testified:

‘When Mr. Cursan passed, us, we stepped off the pavement to the right, as he was so close. He went straight by us, without turning off at all; * * * going 25 or 30 miles an hour.’

Edna testified:

‘We had to get out of the way of it by getting off the road. * * * After passing us, the driver continued down the right side of the road. * * * It * * * continued on its way to the point where Beatrice and Garnet were walking.’

Louise also testified:

‘Mr. Cursan was driving in a northerly direction, and stayed on the right-hand side of the road. He did not slow down any before the accident. I could see him plainly all the time. He was driving close to the edge of the pavement; on the right side.’

There was evidence that defendant Cursan approaching Beatrice gave no warning until he was almost upon her. Defendant Cursan admits having seen the girls on the pavement when he was at least 10 rods distant. As he approached, they were in plain view for a distance of at least 80 rods. His statutory duty was (1 Comp. Laws 1915, § 4818):

‘Upon approaching a person walking in the roadway of a public highway, or a horse or horses, or other draft animals being ridden, led or driven thereon, a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach and use every reasonable precaution to insure the sefety of such person or animal, and in case of a horse or horses or other draft animals, to prevent frightening the same.’

No imperfection in the truck is claimed or shown. There was evidence that Cursan said, 15 minutes after striking the girl, in response to the question, ‘How far back were you when you honked your horn?’ ‘Well, I was right up to her. When I saw I couldn't get around her I tooted the horn.’ Brakes were applied. The truck skidded, it is said, along the pavement about 25 feet. At this point, a private farm driveway of Mr. Millard leads to the east from the right margin of the pavement. Mr. Millard testified:

‘The skid marks caused by the car involved in the accident started in our driveway, and skidded north.’

There was other testimony that the marks of the skidding ran northwesterly. There was evidence that when the truck was ‘right up to’ Beatrice, or about 20 feet from her, and the horn was sounded, she became frightened and ran to the left. She was struck by the radiator. Defendants' testimony was that the speed of the truck at the time was 15 or 16 miles per hour, while plaintiff's witnesses say that the speed was from 25 to as high as between 30 and 40 miles per hour. There was evidence also that the truck was driven near the center of the pavement, and that it struck the girl when she was considerable to the left of such center. It is not claimed that Cursan's conduct was influenced by the presence of any other travelers, vehicles, or objects on or near the pavement at the time. Plaintiff contends that defendants were guilty of gross negligence, so called, and at least of ordinary negligence, and that deceased was guilty of no contributory negligence. Defendants' claims, supported by evidence at the trial, were stated by the trial judge:

‘The defendant denies that the driver was driving at an unlawful or nureasonable speed. The defendant affirms that the horn was sounded at a reasonable distance of the girl; that he was passing far enough to the left of the girl so that, if she had remained in her course, the machine would have passed to the left, and she would have escaped; that the girl, from some impulse not connected with or originating from the acts of the driver, suddenly attempted to cross the road, and that the driver did all that was reasonable-did all that a reasonably prudent man could do in the emergency to prevent any injury. Defendant claims that there was no negligence on the part of the driver, and that the girl was guilty of contributory negligence in attempting to cross the road in front of the machine.’

The case was submitted to the jury with instructions respecting the claimed ordinary negligence of defendants and the claimed contributory negligence of the deceased. The jury was also permitted to consider whether defendants' conduct had been wanton, willful, or reckless. Plaintiff had verdict and judgment. Defendants bring error.

1. It is said that the trial judge erred in refusing to hold the deceased guilty of contributory negligence as a matter of law. On this question the evidence must be viewed in the light most favorable to plaintiff. Deceased had the right to walk on this pavement, a right which defendants were bound to respect. Defendants also had a right to use the road. The rights were mutual and co-ordinate. 29 C. J. 655. It is not claimed, and could not well be claimed here, that deceased was negligent in walking along and upon the right margin of the pavement. Her negligence, if any, must consist in her moving to the left just before being struck. But whether she did this or not is a question of fact. Witnesses say that she did. But if Mr. Millard is right in saying that the marks of the skidding began in (doubtless meaning opposite of) his driveway and went north, and if Edna and Louise are right as to location and direction of travel of the truck at the time, then deceased could have made no considerable movement to the left. But, assuming that she did, there was evidence that she was frightened, and in sudden peril. To one in such situation the law makes allowance for the fright and lack of coolness of judgment incident thereto. Perhaps if she had stepped to the right, as the other girls did, she would have escaped, but, because of the sudden peril, it will not now be held, imperatively, that she should have done that. Defendants may not complain because the question was submitted to the jury. See Fehnrich v. M. C. R. R., 87 Mich. 606, 49 N. W. 890; Baldwin on Personal Injuries, 143.

2. It is urged that the declaration does not aver gross negligence, so called. The manner of averring it was not challenged, nor was it claimed in the trial court that the averment was not specific. A paragraph states:

‘The said defendants, in violation of all their duties as hereinbefore stated, did carelessly, wantonly, willfully, recklessly, and unlawfully steer, guide, propel, and operate said motor vehicle in an unlawful manner as aforesaid, so that the motor vehicel so owned by defendant, * * * and driven by the defendants, * * * came in contract with plaintiff's intestate, and then and there struck, knocked, and threw her to the ground with great force and violence.’

Under the circumstances above set forth, this was sufficient to admit evidence of socalled gross negligence. See Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941, L. R. A. 1916A, 943;Denman v. Johnston, 85 Mich. 387, 48 N. W. 565. We are not called upon in this opinion to consider further the subject of pleading, nor to discuss the law relative to submitting a case to a jury on more than one theory of recovery.

3. In addition to instructing the jury on the theory of claimed negligence of defendants and of claimed contributory negligence of plaintiff, the trial judge defined gross negligence, so called, to be a wanton, willful, or reckless act, or a wanton, willful, and reckless failrue to perform a duty to another, and said, after stating plaintiff's claims as to facts:

‘If you find by the preponderance of the evidence in this case that these are the facts, and that they show gross negligence-if you find that they show gross negligence on the part of the driver, and only slight negligence on the part of the girl, or less negligence than that on the part of the driver, * * * then the plaintiff is entitled to a recovery in this case.’

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