Hickey v. Smith, 26.
| Decision Date | 02 September 1936 |
| Docket Number | No. 26.,26. |
| Citation | 268 N.W. 833,277 Mich. 123 |
| Parties | HICKEY v. SMITH. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Lily Hickey against Max Smith. Judgment for the plaintiff, and the defendant appeals.
Reversed and remanded, with directions.
Appeal from Circuit Court, Berrien County, in Chancery; Chas. E. White, Judge.
Argued before the Entire Bench, except POTTER, J.
Burns & Hadsell, of Niles, for appellant.
Stuart B. White, of Niles, for appellee.
This is an automobile accident case involving a head-on collision between an automobile owned by plaintiff, and at the time driven by her husband, Joseph Hickey, and an automobile owned and driven by defendant, Max Smith. Plaintiff had judgment, and defendant has appealed. Defendant moved for a directed verdict and subsequently for judgment non obstante veredicto. These motions were denied. Appellant urges that the court was in error in denying these motions because it appears from the record that plaintiff's driver was guilty of contributory negligence as a matter of law, and such contributory negligence is imputable to plaintiff.
The accident occurred on M 60 in Berrien county, about 2 1/2 miles west of Niles. This is an improved state highway running in an easterly and westerly direction, the asphalt-concrete driving portion being 20 feet in width with adequate adjacent berms. The accident happened about 9:30 in the evening. Plaintiff, her husband, and their young daughter were proceeding in plaintiff's sedan in a westerly direction at the rate of 30 to 35 miles per hour. It was dark, but the lights on plaintiff's car were dimmed. Suddenly a horse at large was discovered either upon the northerly portion of the pavement along which plaintiff'sauto was proceeding or immediately at the northerly edge of the pavement. Plaintiff evidently discovered the presence of the horse before it had been observed by her husband, and she called out, ‘Dad, look out for the horse.’ Mr. Hickey immediately applied the brakes, but contact with the horse resulted in the automobile swerving to the left and going somewhat upon the southerly half of the pavement. We quote from plaintiff's declaration: ‘* * * And without any previous knowledge or warning to her, (the plaintiff), or her said husband, a horse, whose ownership is not known to the plaintiff, suddenly, and with violence, ran against the plaintiff's automobile from a point directly to the north thereof, and came in contact with the right side of the plaintiff's said automobile, at or near the front door thereof, and with such great force and violence that the said plaintiff's automobile was thereby forced or swerved to its left and was thereupon and almost immediately brought to a stop by its operator at a point partly on the southerly half of the paved portion of said highway.’
Just at this time defendant was proceeding in an easterly direction along this same highway and, according to the undisputed testimony, at a rate not in excess of 35 miles per hour. He and another man who was riding with him discovered the horse on the highway, and thereupon defendant proceeded to slacken his speed. As alleged in her declaration, plaintiff's automobile came over south of the center line of the pavement and, notwithstanding defendant's efforts to avoid a collision, the left-hand front portion of his automobile collided with the left-hand front portion of plaintiff's car. In addition to damage to the automobiles, both Mrs. Hickey and Mr. Smith suffered personal injuries.
While admitting that her automobile at the time of the collision was on the wrong side of the highway, plaintiff still contends that the collision is chargeable to defendant's negligence because plaintiff's car was in the position where it was struck a sufficient length of time to have enabled defendant, if exercising ordinary care, to have discovered the location of plaintiff's car and to have avoided colliding with it. The testimony in support of this phase of plaintiff's case upon which she principally, if not wholly, relies, is that of her eight year old daughter, Mary. This witness testified that, after the impact between the horse and plaintiff's car occurred, and after this car had gone over somewhat onto the southerly portion of the highway, her father brought it to a complete stop; and at that time the little girl observed the...
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... ... It ... applies only where plaintiff cannot, and the defendant can, ... prevent an injury. ( Hickey v. Smith, 277 Mich. 123, ... 268 N.W. 833; Palmer v. Tschudy, 191 Cal. 696, 218 P. 36.) ... Under ... the last chance doctrine a ... ...
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