Hopkins v. Lake, 38

• Decision Date: 17 May 1957
• Docket Number: No. 38,38
• Citation: 83 N.W.2d 262,348 Mich. 382
• Parties: Thomas R. HOPKINS, a minor, by his next friend, Wayne E. Hopkins, Plaintiff, Appellant, and Cross-Appellee, v. Harry LAKE, Defendant, Appellee, and Cross-Appellant.
• Court: Michigan Supreme Court

Page 262

83 N.W.2d 262

348 Mich. 382

Thomas R. HOPKINS, a minor, by his next friend, Wayne E Hopkins, Plaintiff, Appellant, and Cross-Appellee, v. Harry LAKE, Defendant, Appellee, and Cross-Appellant.

No. 38.

Supreme Court of Michigan.

May 17, 1957.

Kelly, Kelly & Kelly, Jackson, for plaintiff, appellant, and cross-appellee.

Rosenburg, Painter & Davidson, Jackson, for defendant, appellee, and cross-appellant.

Before the Entire Bench except

BOYLES, J.

BLACK, Justice.

This negligence case presents anew the question whether a verdict for defendant should or should not have been directed on motion below. It leads directly to the path relocated in Kaminski v. Grand Trunk W. R. Co., 347 Mich. 417, 79 N.W.2d 899 and suggests that we read exordially Mr. Justice Cooley's precepts as quoted on pages 420 and 421 of 347 Mich., on pages 900 and 901 of 79 N.W.2d of Kaminski's report.

Little Tommy Hopkins is the plaintiff in this case. His father is not. The right of action belongs to the boy. The father's lack of care and questioned credibility as a witness, woven as such are into Mr. Justice KELLY'S opinion, are of no present moment and do not support an instructed verdict. Tommy is not old enough in this year 1957 to read or comprehend our conflicting views respecting his rights and those of his defendant opponent. That he--along with the profession of today and tomorrow--be enabled some day to appraise such views, these extended presents supporting reversal of the instruction below are placed of record. Like others of his generation, he may wish to inquire how and by what means that that which is cherished by thoughtful men--the right of trial by jury--stood in jeopardy during the decade of his early boyhood.

First: This is another case--like Welty's Estate v. Wolf's Estate, 345 Mich. 408, 416, 417,--where the rule of favorable view has been tortured and abused in effort to bolster an instructed verdict for the defendant. The testimony given by Tommy's father, that he told Tommy in defendant's presence to go to the well for a pitcher of water for the men--the favorable-to-plaintiff inference being that defendant knew the little boy would be returning shortly through the danger area with the filled pitcher--, is weighed here by some of my Brothers (yes, on motion for directed verdict) against the father's extrajudicial statement Mr. Justice KELLY has quoted. The testimony of witnesses Crisp and Houghton, plus that of the defendant--that he 'did not at any time hear Mr. Hopkins tell Tommy * * * to go get a pitcher of water'--, is advanced by them for the same purpose; that of watering favorable-to-plaintiff view of the father's mentioned testimony.

This is not all. The undisputed proof that defendant was precedently aware of the danger of that which ultimately happened, and then failed to act upon that knowledge when action was fairly and imminently indicated, is conveniently overlooked. This last factor is worthy of special comment, remembering always that we supposedly see--on present appeal--only that which is favorable to Tommy's cause. I proceed.

The scene of operations was limited solely to the farmstead constituting home of the Hopkins family. Literally, the operations were carried on in the back yard of the home. Two small children were known to be in the vicinity. The older of the two, John, strayed away during the watermelon luncheon and the mother started to look for him. The defendant, a veteran truck driver, knowing full well that backing vision--from the driver's position in a conventional dump truck--is completely nil save only as to the limited left side arc, actually warned the father, earlier that morning, to 'watch the little boy.' Yet, when he started to back his truck that last 35 to 40 feet toward tragedy, he saw and continued to see the father standing within his (defendant's) limited arc of view, perfectly positioned to see the entire danger area but facing away from it. Thus the defendant knew from start of the backing movement that the child's father was not doing the very thing he, defendant, had previously warned the father to do. Defendant was aware too--on favorable view of course--that the little boy, theretofore sent from the scene of the watermelon luncheon on an errand suggesting prompt return from the direction of errand-departure ¹, would be apt to enter the very area into which the truck was starting to back. That area--even a small part of it--defendant could not see. All he had to do, before backing farther, was to call the father to attention for a look and a signal. He did not do so, with this result (quotation from father's testimony):

'What first notified me that an accident had happened I heard the glass break. I turned around north, towards the truck. I see Tom under the wheel. When I turned, the truck was on Tom, and he was looking at me. The midsection of his body was under the wheel of the truck at that time when I first heard it and turned. He was laying on his stomach and he was looking at me. He had one arm up like this (indicating). I yelled, walked over immediately to him--by him, and yelled at the truck to stop. Then as soon as I told him to stop, the truck stopped and I yelled for him to pull ahead slowly. Before I yelled for him to pull ahead, the truck had proceeded by then when he stopped up onto his shoulders, pushed him the rest of the way down in the ground. He was face down on his stomach with his head and shoulders protruding from the wheel. Back of the wheel his head was. This truck had on dual wheels--that is, two wheels on either side of the rear axle, rubber tires. And they were close together, that is, each set of whells; two on one side and two on the other, right together. I think there is maybe two or three inches in between the wheels. There is a groove as the wheels come together, I think there is on dual wheels. When I asked the defendant to pull the truck ahead he did so, and when he started to pull ahead, why, Tom was wedged in between the wheels. He started to follow the wheels around, and I see that and I left him go until his feet was clear, and I yelled to stop again. Then he fell off. His body came up wedged between the two left wheels. I yelled for the truck to stop. When stopped his body fell off.'

We may assume that every experienced driver of heavy trucking equipment is or should be aware of imminent danger when he undertakes to back--blindly so far as most of the area of danger is concerned--into or across private property with little children known to be in the vicinity of his intended path. The law so declares at least. In a similar case, where a truck theretofore rented for the purpose of moving an apartment tenant to another location was being backed into position, it was said (Conroy v. Perez, 64 Cal.App.2d 217, 224, 225, 148 P.2d 680, 684):

'As the courts have frequently said, it is ordinarily necessary to exercise greater care for the protection and safety of young children than for adult persons possessing normal and mature faculties. Their conduct is unpredictable and one operating a motor vehicle should anticipate their thoughtlessness and impulsiveness [citing authority]. The presence of children is in itself a warning requiring the exercise of care for their safety [citing authority]. Moreover if the evidence shows that a driver has knowledge of the presence of children he may be held to have been responsible although it appears that he did not see the injured child in time to prevent the injury [citing authority]. This is especially true where the injury occurs in or about the child's home. Cambou v. Marty, 98 Cal.App. 598, 277 P. 365, 367. The court there said: 'Any reasonabe man can be charged with knowledge that a child is apt to be found at any place about the family yard. Charged with that knowledge it becomes his duty to use vigilance and care before setting in motion a dangerous instrumentality in that locality.''

The supreme court of Vermont, considering another case where an automobile was backed over a 3 year old boy, adopted from Massachusetts what I think is the right rule for cases of present nature (Callahan v. Disorda, 111 Vt. 331, 16 A.2d 179, 182). I quote:

'* * * In a recent Massachusetts case it was said: 'The backing of any vehicle entails more or less limitation on the view by the driver of the area to be traversed and thus requires corresponding vigilance on his part to avoid causing injury to persons who are known to be, or likely to be, there, whether the vehicle is being backed on a public street or on private land.' Eaton v. S. S. Pierce Co., 288 Mass. 323, 192 N.E. 831, 832.

'* * * Whether the defendant, without knowing exactly where the child was when she started to back, but with the knowledge of the child's recent presence nearby and of his likelihood to make sudden and unpredictable actions with which she was charged, acted with the degree of care required by this section, was, on all the evidence, a question for the jury.'

There is no dearth of authority dealing with the question before us. It is annotated exhaustively in 67 A.L.R. 647 and 118 A.L.R. 242, consistent in every respect with Michigan's early declaration (Detroit & Milwaukee Railroad Co. v. Van Steinburg, 17 Mich. 99) that, 'As a general rule, it cannot be doubted that the question of negligence is a question of fact and not of law (citing cases).' So far as concerns Michigan law it is recorded in Guscinski v. Kenzie, 282 Mich. 204, 275 N.W. 820; Kinsler v. Simpson, 257 Mich. 7, 240 N.W. 98; and Roach v. Petrequin, 234 Mich. 551, 208 N.W. 695.

Second: By means of post-argument correspondence between counsel and our clerk the 'rough drawing', mentioned in the Mr. Justice KELLY'S opinion, has now been interpreted for us. It shows that each truck, after having entered the Hopkins farm unloaded from the east-west highway, proceeded south along the farm driveway to a point north of several pine trees....