Halzle v. Hargreaves

• Decision Date: 22 December 1925
• Docket Number: No. 10.,10.
• Citation: 233 Mich. 234,206 N.W. 356
• Parties: HALZLE v. HARGREAVES.
• Court: Michigan Supreme Court

233 Mich. 234

206 N.W. 356

HALZLE

v.HARGREAVES.

No. 10.

Supreme Court of Michigan.

Dec. 22, 1925.

Error to Circuit Court, Wayne County; Charles B. Collingwood, Judge.

Action by Christena Halzle against Richard L. Hargreaves. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Barbour & Martin, of Detroit (Henry C. L. Forler, of Detroit, of counsel), for appellant.

Clark, Emmons, Bryant & Klein, of Detroit (Kerr, Lacey & Scroggie, of Detroit, of counsel), for appellee.

WIEST, J.

Plaintiff was struck and injured by defendant's automobile while she was walking across Second avenue at the intersection of Glendale avenue in the city of Highland Park, and brought this suit to recover damages. The trial judge held she was guilty of negligence, and left only the issue of whether her peril was known or should have been discovered by defendant in time, and by the exercise of ordinary prudence, to have avoided injury to her. The jury found for defendant, and plaintiff revews by writ of error.

The accident happened on Sunday, March 26, 1922, about 2:30 o'clock in the afternoon. The weather was clear and the pavement dry. Plaintiff was of mature years, and, with her sister, had walked on the south side of Glendale to the east curb of Second avenue, where, after watching the traffic for a few moments, she left her sister and started to cross to the west side of Second avenue. Defendant was driving north on the east side of Second avenue, intending to make a left turn on Glendale. Plaintiff looked to the south before she left the curb, and an unobstructed view for a block, and claims she did not see any automobile. The first she saw the automobile was when she heard some one scream, and it was then about 4 feet from her, and she claims she was near the middle of the street. She testified:

‘The paved portion of Second avenue is 26 feet wide. From where I stepped down from the curb over to the center portion of Second, is a distance of 13 feet. I traveled that distance without looking to the south. There was no other traffic passing going north from the time I stepped off of the curb up to the time the accident happened. * * * When I was out in the street, I suppose I could have seen the automobile coming sooner if I had looked, but I couldn't see it when I was on the walk. I suppose I could have seen it from the time I left the curb. While walking there was nothing to prevent me from stopping at any stop in the street. If I had looked to the south after I stepped off the curb and saw this automobile coming, I suppose I could have stopped, but I didn't either stop or look.’

Vigilance is an essential and available safeguard to life and limb in this automobile age, and reasonable care requires constant exercise of the faculty of sight while crossing a city street. Under plaintiff's testimony she was negligent, and the circuit judge was right in so holding. Jones v. Armstrong, 231 Mich. 637, 204 N. W. 702, and cases there cited. We recognize the rule that it must be a clear case of want of ordinary care to justify the court in holding there was negligence as a matter of law, but when the facts are beyond dispute the law must be applied. Counsel for plaintiff asked leave to argue the question of plaintiff's negligence to the jury, and contends there was error in not permitting him to do so. The question was one of law upon the conceded facts, and there was no error in the refusal.

Defendant testified that he saw plaintiff standing on the curb when he was about 40 feet away, sounded his horn, and did not see her again until his automobile was within about 6 feet of her, and she was then about 8 feet from the curb, and, if she had not jumped back, she would have been right in front of the automobile. The fender of the automobile struck plaintiff. Defendant did not see plaintiff in the street until he heard some one scream, because he was engaged in looking back through his mirror, and...