Hammock v. Sims, 18.

• Decision Date: 07 January 1946
• Docket Number: No. 18.,18.
• Citation: 313 Mich. 248,21 N.W.2d 118
• Parties: HAMMOCK v. SIMS.
• Court: Michigan Supreme Court

313 Mich. 248

21 N.W.2d 118

HAMMOCK

v.SIMS.

No. 18.

Supreme Court of Michigan.

Jan. 7, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.

Action by Henrietta Hammock against Bertha Sims, administratrix of the estate of Irvin Sims, doing business as Central Packing House Market, for injuries sustained by plaintiff when struck by defendant's truck. From a judgment for defendant, the plaintiff appeals.

Judgment set aside and new trial granted.

Before the Entire Bench.

Seymour Tilchin and William Banks, both of Detroit, for plaintiff and appellant.

Howard D. Brown, of Detroit (Louis M. Dyll, of Detroit, of counsel) for defendant and appellee.

BOYLES, Justice.

Plaintiff appeals from a judgment entered for defendant upon a verdict by jury, in a personal injury automobile damage suit. Plaintiff seeks reversal and a new trial on the grounds that errors were committed in several particulars during the trial, which may be grouped as follows: (1) Errors in admitting or excluding testimony; (2) errors in charging the jury; (3) error in denying plaintiff's motion for a new trial. While the usual questions as to defendant's negligence and plaintiff's contributory negligence are not involved in the appeal, a short statement of facts is necessary for a proper consideration of the grounds urged for reversal.

The accident occurred at the intersection of Hastings and Winder streets in Detroit. Hastings street runs north and south, 28 feet wide at this intersection, with a single streetcar track in the center. Winder street runs east and west. The accident occurred at about 6:00 P.M. on January 24, 1942. The plaintiff testified that she had alighted from a streetcar northbound on Hastings street just south of the Winder street intersection, walked east to about the southeast corner of the intersection and stopped at the curb; that she looked and saw no traffic, walked back west to the streetcar track in the center of Hastings street, looked north and saw the defendant's truck approaching from the north on Hastings street on its own (west) side of the street about a block away. The plaintiff testified that:

‘The closer it got to me, it was coming in to me so that made me step back, try to get back a little further. When I saw it it was not on the streetcar track, but over near the west curb. It was close enough it went on by me and not hit me, but it got to sliding.’

Plaintiff then testified that she stepped back on the streetcar track but that the defendant's truck skidded and struck her there.

It is admitted that the plaintiff was run into by the truck and injured. An issue of fact was raised as to just where plaintiff was at the time she was struck. The driver of the truck and a disinterested witness to the accident both testified that the accident occurred close to the west curb, not on or near the streetcar track in the center. In answer to a special question the jury found that the accident took place on the west half of Hastings street, and found the defendant not guilty of negligence.

The principal grounds ruged by plaintiff for reversal are that the court erred in excluding testimony as to the speed of defendant's truck under the circumstances of the case, that in charging the jury the court was mistaken as to the testimony in that regard, and that the court erred in his charge to the jury by eliminating the issue of fact as to the speed of the truck.

In her amended declaration the plaintiff alleged:

‘(6) That it was the duty of the defendant herein through his agents and employees * * * to operate the said sutomobile or vehicle at a careful speed not greater nor less than reasonable and proper, having due regard to the traffic, surface, atmospheric and weather conditions and of other conditions then existing; * * *

‘(10) That * * * the negligence of the defendant herein specifically consisted of the following violations: * * *

‘(b) Operating the same in a careless, reckless manner without regard to weather conditions and the right of other persons on the highway. * * *

‘(d) Operating his automobile at a rate op speed unsafe in view of weather conditions.’

The defendant's answer specifically denied these allegations and an issue of fact was thus raised by the pleadings in the case.

On direct examination the plaintiff testified:

‘When I got about the center of the street I looked down, looked north and I see this truck coming. Being slippery I didn't think I could make it across, I stood still. Well, he was over next to the curb. Well, when he got very near on me it seemed like to me he was going toward me. I backs a little farther and by that time I run around back where I come from, but I couldn't. I tried to run back where I came from. I looked around and the car hit me going back. There was no way to prevent it much. When I first saw him, he was about a half a block away. When I first saw him half a block I was proceeding in the middle of the car line. When I looked I saw him and stood, because it seems as though he was coming on me a little faster than I could make it across the slippery street.’

On cross-examination she testified:

‘The truck was a half block away-that is, in the middle of the street, between Winder street and the next street north. The truck was a half block, plus the entire width of Winder street, plus the part of the sidewalk away from me.

‘Q. You say you were afraid to go those 14 feet? A. Yes, it looked like it was advancing on me too fast to be a slippery night.

‘Q. You saw it the first time it was half a block away while you stood there. How long did you stop and wated it? A. Well, I watched it until it got-I wouldn't know just the distance it got to me, but I can't bear back. I see it was sliding, it was sliding.

‘Q. Mrs. Hammock, what were the conditions or the ice and the snow and the rain that you say that wouldn't permit you to try to go that 14 feet to the sidewalk? A. It was raining and the streets were slippery.

‘Q. It wasn't icy, was it? A. Yes, icy.

‘Q. Raining at the time? A. Yes.

‘Q. Was it all ice so it was all very slippery? A. It was very slippery out there. * * *

‘A. * * * I didn't attempt to go to the sidewalk, seeing this truck coming The truck was advancing faster on me than I could go, maybe I would slip down. * * * ‘Q. Under ordinary conditions of a dry pavement you could easily have reached the westerly curb from the center line of the street when you first discovered the truck a half block away, could you not, Mrs. Hammock? A. Well, the truck seemed to be advancing so fast I wouldn't have taken no chance, under circumstances of a dry street or wet street the way the car was advancing.’

The following occurred on redirect examination of plaintiff:

‘Q. You say you couldn't cross the street because the car was advancing on you, is that right, was advancing on you fast? A. Yes.

‘Q. How fast would you say the car was advancing at the time-wait a minute; at the time you were standing in the middle of the intersection; how fast would you say the car was advancing on you, if you know?

‘Mr. Dyll (attorney for defendant): I will object to that until the witness is qualified, and secoudly, until you get evidentiary facts showing an ability on the part of this witness to make an answer to that.

‘The Court: Objection sustained. In addition, it has already been answered.

Mr. Tilchin (attorney for plaintiff): To the speed, your honor? I am sorry, I didn't get the second part of the court's ruling.

‘The Court: I will sustain it on the ground upon which the objection was made, the witness has not been qualified to give her judgment of speed.

‘Q. Have you ever ridden in a car, Mrs. Hammock? A. Yes. I have ridden in a car. * * *

‘Q. Have you also observed cars travelling on the streets? A. Yes, I have been riding in them, i been looking at the little watch go around at the time.

‘Q. As a result you feel you can judge the speed of a car? A. Well, I do.

‘Q. How fast would you say this particular car was advancing upon you, at the time you stood at the middle of the tracks?

‘Mr. Dyll: Just one moment, please. I will object to that. This Witness has certainly not been qualified to answer that question.

‘That Court: Objection sustained. Have you forgotten this witness' testimony on direct examination on this point?

‘Mr. Tilchin: I don't remember off-hand, your honor.

‘The Court: You didn't get the speed in miles per hour. She said the car was approaching, but not very fast; he wasn't going very fast. I don't think you can-well, I sustain the objection to the present question upon the ground that she is not qualified to give the speed of a car in miles per hour.

‘Q. Let me ask you this question then: Do you know whether the car was going faster than what you normally observe cars to travel?

‘Mr. Dyll: Just a minute. I will...