Gilson v. Bronkhorst
| Decision Date | 01 October 1957 |
| Docket Number | Nos. 37,38,s. 37 |
| Citation | 90 N.W.2d 701,353 Mich. 148 |
| Parties | Ida GILSON, Plaintiff and Appellee, v. Albert BRONKHORST, Defendant and Appellant. Judy PRITCHETT, by next friend, Plaintiff and Appellee, v. Albert BRONKHORST, Defendant and Appellant. , |
| Court | Michigan Supreme Court |
Hathaway, Latimer, Clink & Robb, Muskegon, for defendant and appellant.
Poppen, Street & Sorensen, Muskegon, for plaintiffs and appellees.
Before the Entire Bench.
These cases, originally assigned to a Brother Justice, were reassigned to the writer February 27, 1958.
Before us are consolidated actions for negligence in which it is alleged that the defendant motorist inflicted actionable injury to the person of plaintiff Judy Pritchett. Judy--aged 9 years plus at the time--attended the Hile School. The school premises are situated on the west side of highway US 31, a short distance south of Muskegon Heights. School had let out some 20 minutes prior to the events we are to consider. Judy stayed for the interval to help clean erasers. She then attempted crossing the highway, in front of the main school building and from west to east toward her home, as the defendant's car approached from the north. According to her favorably viewed testimony, Judy was struck by the car after she had crossed the west half of the paved portion of the highway and was on the easterly half of the pavement. Defendant did not see the little girl until, according to his testimony, 'she was right in front,' no more than 2 feet away. No question as to sufficiency of proof of causal negligence on his part is presented. Further details will appear later by quotation from the trial judge's opinion.
Trial to court and jury resulted in verdicts and judgments for the respective plaintiffs. Defendant appeals.
First: The Question of Contributory Negligence.
Defendant insists that his motion for directed verdicts should have been granted, with bench-declared imputation of Judy of contributory negligence. We cannot agree.
There is no need for review of recent relevant decisions, the essence of which we apply to this case with declaration that 'the prudence of the party injured (Judy) must be estimated in view of what he (she) had a right to expect from such other person (the defendant)' 1, and with corollarial declaration that the trial judge properly refused to hold this child-pedestrian guilty of contributory negligence in view of her undoubted right to rely on fair performance of the defendant's duty to enter and proceed through this school zone--especially considering the time of day--at reduced speed and with increased vigilance. See to the point Steger v. Blanchard, 350 Mich. 579, 586, 86 N.W.2d 796 (rehearing, Mich., 90 N.W.2d 891). If such a rule is applicable in proper case to an adult pedestrian, it must in circumstances as here be applied to the case of a 9 year old school pupil.
In this case a large school had just let out. Motorists approaching the vicinity were plainly and precedently warned by proper traffic control signs of the imminence of a school zone. The testimony of a motorist defendant overtook and passed ('a big block' north of the school premises), tended to prove that defendant was proceeding at an excessive rate of speed as he entered and proceeded through the school zone. True, and as defendant vehemently contends (with both feet planted firmly on Denman v. Youngblood, 337 Mich. 383, 60 N.W.2d 170), the oncoming car was there to be seen by Judy--through and by means of 'further observation'--prior to her attempted crossing. But that fact alone is not decisive in favor of an instructed verdict. Pedestrians in these days of crowded highways must on occasion--such assuredly is the case when a school is letting out or has recently released its pupils--cross in front of visibly approaching motor traffic. We judge their conduct on motion for directed verdict not by what could have been seen and done but by the standard of care the law exacts of them under the particular circumstances of their criticized action or inaction (Normand v. Thomas Theatre Corp., 349 Mich. 50, 84 N.W.2d 451); in other words, by a constantly variable standard which depends for its ascertainment on such circumstances. To this we need but add that the motoring speed of approach factor, and the distance-away factor, as a child assumes to cross his marked school zone during or shortly after school hours, constitute a vital part of 'the circumstances under which he acts' (Quotation from Flynn v. Kramer, 271 Mich. 500, 505, 261 N.W. 77, followed in Normand, supra).
While the question whether Judy was walking or running at the time was sharply disputed, we cannot on review of motion for directed verdict look at the record other than favorably to her. We accordingly arrive at agreement with the trial judge's disposition of the question of contributory negligence, quoted from the records as follows:
'This Court has carefully considered the question of whether Judy Pritchett was guilty of contributory negligence as a matter of law and concludes that under the facts of this case such issue was properly submitted to the jury.
'This accident occurred on US-31, South of the City of Muskegon in front of the Hile School. U. S. Highway 31 is a heavily travelled highway, the paved portion of which is 20 feet wide. The area surrounding the school is a heavily populated suburban community with some commercial buildings interspersed with homes. The school zone is plainly marked and was admittedly well-known to the defendant. A straight sidewalk extends from the entrance of the school to the berm of the highway at which a cross-walk for children exists. Defendant commenced passing another automobile at about the time he entered the marked school zone.
'The injured child was approximately nine and a half years old at the time of the accident. She testified she walked to the edge of the pavement and waited for a line of cars to pass in front of her traveling in a northerly direction; that she looked and saw no other cars appoaching; that she proceeded to walk across the highway; that she crossed the westerly half of the highway and had proceeded 25 inches beyond the centerline when defendant's auto, traveling in a southerly direction, struck her.
Second: The Question of Future Damages.
Relying on the general rule, first announced in Michigan when Brininstool v. Michigan United R. Co., 157 Mich. 172, 121 N.W. 728 was handed down, 2 defendant insists that the trial judge reversibly erred in giving the following instruction to the jury:
Judy was grievously hurt. The principal injury with which we are concerned was a splintering--comminuted--fracture of the left femur extending 'from the level of the hip downwards for a distance of about six inches.' Such fracture was first reduced through surgical installation of a metal plate and screws. When the fragments had apparently knit to the surgeon's satisfaction, the plate and screws were removed. This second operation was performed December 6, 1952, a little over 9 months after the date of accident and injury. January 6, 1953, Judy slipped and refractured the femur at the point of original fracture. The cause of the second fracture was attributed by the surgeon to 'the atrophy of the bone, the weakness of it.' Such fracture was reduced by a third operation, this time through installation in the femur of what is medically known as an intramedullary rod. The rod is made of stainless steel. It is usually introduced at the upper end of the femur and is then driven down through the marrow canal to and beyond the point of fracture, thereby and in lay parlance splinting the fracture inside the bone itself. Later, and when healing is judged satisfactory, a final operation is performed; that of withdrawing the rod at the point of introductory surgery.
We turn from this background to the testimony disclosing surgical result and disability as found at the time of trial. The surgeon testified:
'We removed the intramedullary rod once healing was sound, as one always likes to do in children, because it does interfere with normal growth, and that was done in August of 1954, and she has been seen subsequently, and on our final examination on this child she was walking well, with a very mild stiffness of gait. She had normal range of motion in both hips, knees and ankles. She had normal growth, with a leg length discrepancy--shortness on the one side--of approximately one-half inch, and this will vary as she grows during the next few years.
'Q. Would you anticipate, Doctor, that this difference in leg length will be a permanent condition, or is that something that will have to adjust itself? A. It frequently adjusts itself. Sometimes it may stay on permanently, in which event it's sometimes necessary, if it's more than an inch, or more than a half inch, actually, for a good gait it may be advisable to slow up the growth in the other side, so the other side can catch up. * * *
'Q. Doctor, in your opinion, will this child suffer any permanent impairment of the use of this leg? A. At her...
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