Jakubiec v. Hasty, s. 53
| Decision Date | 22 June 1953 |
| Docket Number | 54,Nos. 53,s. 53 |
| Citation | 59 N.W.2d 385,337 Mich. 205 |
| Parties | JAKUBIEC v. HASTY et al. (tow cases). |
| Court | Michigan Supreme Court |
Edward N. Barnard, Detroit, for appellants.
Con S. Gryczka, Hamtramck, for appellees.
Before the Entire Bench.
Plaintiff Theresa Jakubiec was 18 years of age at the time of her injury. Her father, Joseph Jakubiec, as her next friend, instituted an action for her damages and a separate action for medical expenses and the loss of her services. These actions were combined and tried before a jury.
Defendants Arthur L. Hasty, the owner of the taxicab which struck Miss Jakubiec, and John P. Nugent, his employee driver, have appealed from judgments entered upon the jury's verdicts in the personal injury case of $6,500, and in the medical expense and loss of service case of $1,000.
It is admitted that the taxicab struck the plaintiff while she was crossing Michigan avenue in the city of Detroit on August 4, 1948, at 3:40 p. m. She was walking from the northwest curb of the intersection of Brooklyn avenue to the east-bound street-car safety zone on Michigan. The day was rainy and the pavement was wet.
Plaintiff suffered a compound fracture of her right leg, with cuts and bruises which required hospitalization for four days and confinement to her home for six weeks. She was unable to resume her work until about seven months after the accident. As a result of her injury, Miss Jakubiec's right leg is now shorter than her left.
When the actions were ready for trial on December 18, 1951, about 18 months after they were commenced, considerable discussion ensued over the absence of Edward N. Barnard, defendants' attorney of record. The trial judge indicated that he was under the impression that Mr. Barnard was attempting to delay the taking of testimony. Two attorneys from the Barnard office were present, both of whom disclaimed sufficient knowledge of the facts to adequately represent the defendants. It was suggested by them that Theodore Robbins, another of Mr. Barnard's associates, who was familiar with the case but was at the moment engaged in a trial in the recorder's court, could appear the following day. The trial judge indicated that, because of the approaching Christmas season it would be inadvisable to delay presentation of testimony before a jury and insisted that the cause proceed.
A jury was then drawn from the members of the panel who were present and had heard the court's discussion. Before they were examined as to their qualifications the court said:
Counsel's motion for a mistrial based upon this claimed improper observation was denied. The court then asked the jury if Mr. Barnard's activities would affect any of them and prevent the rendition of a fair and impartial verdict. After the members of the jury had replied in the negative, counsel indicated thy were satisfied with the jury, and it was sworn.
Plaintiff is a deaf-mute and was examined through an interpreter. On the day of the accident she was employed at the Banner Laundry on Brooklyn avenue, a few blocks north of Michigan, from which place she walked southerly down the west side of Brooklyn to the northwest corner of the intersection. Michigan avenue runs almost due east and west, while Brooklyn runs about 30 degrees west of north. She testified she looked both ways, saw a truck and car coming from the east at a distance of about 300 feet, about a block away. A atreetcar was approaching from the west at the same time, also about a block distant.
Plaintiff testified that the truck passed her at about 30 miles per hour and the car that followed it was moving at about the same speed. She then started across Michigan to the east-bound safety zone. When she reached the west-bound streetcar tracks, defendant's taxicab, also going west, suddenly appeared and struck her. She said she first saw the approaching taxicab when 20 feet away in the center of the street near the west-bound rails.
Florence Stewart, a fellow employee, had reached the northwest corner of the intersection while plaintiff was waiting to cross Michigan. Mrs. Stewart then walked easterly across Brooklyn to the northeast corner for the purpose of boarding a westbound Michigan avenue streetcar. She said that, after she reached the west-bound safety zone, there was 'a big truck there, a semi-highway truck that went by.' She did not see Miss Jakubiec cross Michigan avenue, but did see the taxicab coming from the east in the west-bound streetcar track. It passed so close to her while she was standing in the safety zone that she had to step back to keep from being splashed. She testified that it was moving at a speed of over 35 miles per hour, and that She did not see the taxicab strike the body.
Frank Percin, a police officer, who did not witness the accident but arrived after it occurred, said:
Percin did not write the accident report and was not permitted to use it to further refresh his recollection. This ruling of the court is now claimed to be erroneous, although no objection was interposed at the trial. Sergeant Edwin Premo, who investigated the accident and prepared the police report, was not permitted to testify because he was not present when the accident occurred and had no recollection of it apart from the report. He said: 'I would have to go strictly by the record I have here.' He was permitted to state the facts pertaining to the location of the tracks, the intersection, distances, etc.
Another witness for the defense was Claude D. McKim, who was the motorman of the east-bound streetcar that was involved in the accident. He testified that he saw a woman run in front of a Checker cab. In answer to the question: 'Have you any estimate of the speed of the cab?' He answered: 'No, just the usual rate of speed, around twenty-five miles an hour.' Upon objection, the court ruled: 'The answer after the word no will be stricken.' McKim said that the woman left the curb at a point about 10 feet west of the west end of the safety zone; that when he first saw the taxicab it was about 15 feet away and swerving to its left after straddling the north west-bound rail. He stated that the woman did not look when she left the curb.
A Checker Cab Company employee testified that he made a search for Hasty's driver, Nugent, but that he could not be found. Neither defenda...
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