In re Miller's Estate, 21.

• Decision Date: 17 March 1942
• Docket Number: No. 21.,21.
• Citation: 2 N.W.2d 888,300 Mich. 703
• Parties: In re MILLER'S ESTATE. Claim of McLAIN.
• Court: Michigan Supreme Court

300 Mich. 703

2 N.W.2d 888

In re MILLER'S ESTATE.

Claim of McLAIN.

No. 21.

Supreme Court of Michigan.

March 17, 1942.

Proceeding in the matter of the estate of Sherman Miller, deceased, wherein Grant McLain, administrator of the estate of Earl McLain, deceased, filed a claim for damages incident to the death of Earl McLain, who was fatally injured by an automobile driven by Sherman Miller. From an allowance in favor of the Earl McLain estate in the probate court, the cause was appealed to the circuit court. From a judgment on a directed verdict for the Sherman Miller estate, Grant McLain, administrator of the estate of Earl McLain, deceased, appeals.

Affirmed.Appeal from Circuit Court, Muskegon County; Joseph F. sanford, judge.

Before the Entire Bench, except WIEST, J.

George H. Cross and Robert A. Carr, both of Muskegon, for appellant.

Clifford A. Mitts, Jr., of Grand Rapids, for appellee.

SHARPE, Justice.

This is an appeal from a claim filed in the probate court to recover damages incident to the death of Earl McLain, who was fatally injured by an automobile driven by Sherman Miller.

The material facts are not in dispute. On November 1, 1938, Sherman Miller was delivering mail on Kinsey street, just outsideof the city limits of Muskegon. The street runs north and south and is unpaved, but has a cinder driveway down the center of the street. The McLain residence is located on the west side of the street; adjoining the McLain lot on the south, is the Johnson property. On the east side of the street and directly opposite the McLain residence is the Jones residence. In front of each residence and along the border of the street is located a mail box which, under requirements of the post office department, is so located that the mail carrier can drive up to the box and make delivery without getting out of his car. About one o'clock on the day in question, Sherman Miller, a substitute mail carrier, was delivering mail on this street. He deposited some mail in the Jones' mail box. At this time two small children were hanging onto the right rear bumper of Miller's car. Miller then drove diagonally across the street to the Johnson's mail box, a distance of about 42 feet. The children continued to hang onto the bumper. Miller put mail into the Johnson's mail box by lowering the window in his car. About this time, Mrs. Johnson opened her front door and called to the children to get away from the car. After depositing the Johnson mail, Miller slowly backed his car diagonally toward the northeast. The children continued to hang onto the bumper and ran backwards until the car had gone about one car's length, then they ran towards the McLain house. As the car was backing up, Mrs. Johnson went from her hosue to get her mail, a distance of about 36 feet, and as she reached the mail box she heard a noise or groan. She saw the McLain child for the first time; he was between the two front wheels of the Miller car. The boy was under the car, near the left front wheel, and was crawling out. At this time, the car was not in motion and was about one and a half car-lengths from the Johnson mail box. It was standing with the right front wheel about in the center of the road with most of the car on the east side of the road. The boy was taken to the hospital and died within a short time.

Subsequent to the time of the accident, Sherman Miller died and an administrator of his estate was appointed by the probate court of Muskegon county. On December 14, 1939, Grant McLain as administrator of the estate of Earl McLain filed a claim for damages arising out of the death of Earl McLain against the estate of Sherman Miller. This claim was based upon the negligence of Miller in the operation of his car at the time and place in question. From an allowance in favor of the Earl McLain estate in the probate court the cause was appealed to the circuit court. At the close of plaintiff's case, defendant made a motion for a directed verdict upon the grounds that plaintiff had failed to establish defendant's negligence and that there was no proof of damages. The trial court granted defendant's motion and directed a verdict of no cause of action. A motion for a new trial was filed by plaintiff and on hearing of the motion, the same was denied by the court.

In directing the verdict the trial court stated as follows:

‘In this case the duty is upon the plaintiff, not only to prove that there was an accident and the boy injured, the duty, the burden is upon the plaintiff to prove that the defendant was guilty of negligence. Not only that, the duty is upon the plaintiff to prove that the negligence of the defendant was the proximate cause of the boy's injuries. * * *

‘There is no evidence placing this boy that was injured in a position where the driver should see him.’

Plaintiff appeals and contends that the driver of the car was negligent in backing his automobile without sounding the horn and without making reasonable observations to discover if there were any children at the rear or near his automobile at the time he was about to back up.

In Jenkins v. Bentley, 277 Mich. 81, 84, 268 N.W. 819, 820, we said:

‘We concur in the language of the court in Taulborg v. Andresen, 119 Neb. 273 [280],228 N.W. 528, 531, 67 A.L.R. 642:

“The law does not forbid the backing of an automobile upon the streets or highways, and to do so does not constitute negligence, but the driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and his duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured. * * * and he must not only look backward when he commences his operation, but he must continue to look backward in order that he may not collide with or injure those lawfully using such street or highway (citing authorities).”

See, also, Guscinski v. Kenzie, 282 Mich. 204, 275 N.W. 820; annotations in 67 A.L.R. 647 and 118 A.L.R. 242; 3-4 Huddy, Cyc. Automobile Law, 9th Ed., p. 218, § 133; 2 Blashfield, Cyc. Automobile Law and Practice, Perm.Ed., p. 272, § 1101, et seq.

The sole question in this case may be stated as follows: Was there any...