Graham v. Evening Press Co.

• Court: Michigan Supreme Court
• Writing for the Court: MONTGOMERY, J.
• Citation: Graham v. Evening Press Co., 135 Mich. 298, 97 N.W. 697 (Mich. 1903)
• Decision Date: 22 December 1903
• Parties: GRAHAM v. EVENING PRESS CO.

97 N.W. 697

135 Mich. 298

GRAHAM v. EVENING PRESS CO.

Supreme Court of Michigan

December 22, 1903

Error to Circuit Court, Kent County; Alfred Wolcott, Judge.

Action by Sarah Graham against the Evening Press Company. Judgment in favor of plaintiff. Defendant brings error. Affirmed.

T. J O'Brien and James H. Campbell, for appellant.

Lombard & Hext, for appellee.

MONTGOMERY J.

This is an action for negligent injury. The plaintiff, a woman 74 years old, attempted to cross diagonally from the southeast corner to the northwest corner of Ionia and Pearl streets, in the city of Grand Rapids, about 6 o'clock p. m. of the 17th of October, 1901. While in the act of crossing she was struck by a horse owned by defendant and driven by its employ�, one Harry C. Stewart. Plaintiff sustained substantial injuries, and on trial recovered a verdict of $250. Defendant brings error.

It is contended that there was no evidence of negligence on the part of the driver. The driver was made a witness for the plaintiff, and possibly, although we do not so decide if his testimony as a whole be taken as an accurate statement of the incident, there was no negligence on his part. But the plaintiff adduced other testimony. She herself testified that before she stepped off the sidewalk into the paved portion of the street she looked in either direction and saw no teams approaching in either direction sufficiently near to arrest her attention or cause concern for her safety. The driver testified that at the time plaintiff left the curb he was about a rod away; that the collision occurred when she had traveled about 20 feet from the curb; and that he was jogging along at a fair rate of speed. He further testified as follows: 'Q. You said just a minute ago you were within three feet of the curb? A. Yes, sir. Q. From the same curb she stepped off of? A. Yes, sir. Q. Now, did you immediately turn your horse west? A. Not at once; no, sir. Q. Why didn't you? A. Why, because I thought probably, if she continued on, I could go behind her. Q. Well, she did keep on, didn't she? A. Yes. Q. You could have stopped your horse, if you had tried, when you first saw her? A. No, sir. Q. Why could you not? A. Too heavy. Q. Too heavy? A. Yes, you could not stop so quick. Q. When did you first try to stop? A. As soon as I saw her, I commenced to pull up. Q. If you had turned to the west, you would not have struck her, would you? A. You could not turn a horse as quick as that. Q. You say, in your judgment, she was twenty feet out into the street. How wide is your rig? A. I don't know. Q. About five feet, isn't it? A. All of that. Q. You had space between her and twenty feet to get through didn't you? A. No, sir. Q. Why? A. Because I was at the same point she was at the end of that twenty feet. Q. But if you had gone the other way, if you had started in behind her in fact had gone either side, you would have escaped her wouldn't you? A. Yes, of course. Q. You had a chance to have done either? A. No, sir. Q. Explain to the jury why you didn't have a chance to go either side. A. Why, there wasn't time; neither time nor room. Q. There wasn't time? A. No, sir. Q. There would have been if you had started to turn your horse as soon as you saw her, wouldn't there? How about that? A. There might have been, yes. Mr. Lombard: That is all. A. But I doubt it.' Edgar Rice, a witness for plaintiff, testified as follows: 'When I first saw her, she was on the southeast corner; on the corner, standing there looking up and down the street. And one particular thing that called my attention to it at the time, she seemed to me like a lady that didn't really know where she was going, or else looking to see if there was anything coming down the street either way. At the time I noticed her, I saw a team down the street, I should think three or four rods to the south of her. It was the Evening Press wagon. While I was looking, she was looking up and down the street in different directions, and then started directly across the street, or diagonally across toward the Y. M. C. A. building. Q. At the time she started across the street, you may state if you observed how far up the street this team was. A. I should think the team was between three and four rods from the corner. Q. What did you next observe? A. The next that I observed was--the next I saw was--when the wagon was practically upon this lady. It was not over six feet the second time I noticed it. Q. I will ask you whether you continued to observe that all the time, from the time you first saw that or not? A. No, sir; I just noticed her when she was leaving the walk, and I did not think any more of it until I looked up and saw the wagon upon her. * * * Q. Now, will you describe to the jury just what you saw then? A. Do you mean at the second time I looked up? Q. The second time you saw it. A. The second time I looked up I saw the horse, as I should judge, about five or six feet from this lady, and I saw immediately what was going to happen, but at the same time was not in any way to prevent it. By Mr. O' Brien: Suppose you state just what you saw, without any reasons. Mr. Campbell: That remark ought to be stricken out, his impression at the time. I move to strike out the first statement--what he saw and what he thought. The Court: What he thought may be stricken out; the statement of what he saw may remain. A. And the driver turned his horse to the west just about the time that it struck this lady, and she fell to the northeast, which would be in that direction, and struck on her right side; and the driver pulled his horse in as soon as he could, but he had gone about fifteen feet beyond before he got the horse brought to a standstill. I ran there as soon as I could get there, and helped to pick her up. The driver got down off the wagon, and I think he was the one that assisted in picking her up. What I got to her she was on the pavement.' The testimony of this witness disputes that of the driver in another respect. The testimony of the latter is

to the effect that the horse came to a stop at the instant of the collision, which is inconsistent with that of Mr. Rice above quoted. From this testimony it was competent for the...