Jenks v. Ingham Cnty.

• Decision Date: 05 June 1939
• Docket Number: No. 50.,50.
• Citation: 288 Mich. 600,286 N.W. 93
• Parties: JENKS v. INGHAM COUNTY.
• Court: Michigan Supreme Court

288 Mich. 600

286 N.W. 93

JENKS

v.INGHAM COUNTY.

No. 50.

Supreme Court of Michigan.

June 5, 1939.

Action by Alfred W. Jenks, administrator of the estate of Genevieve Violet Jenks, deceased, against Ingham County for the death of deceased allegedly resulting from defendant's negligence in maintaining a highway. From an adverse judgment, the plaintiff appeals.

Judgment vacated and new trial granted.

Appeal from Circuit Court, Ingham County; Charles H. Hayden, judge.

Argued before the Entire Bench.

Paul C. Younger, of Lansing (William C. Brown, of Lansing, of counsel), for appellant.

Thomas J. Bailey, Pros. Atty., and Leonard B. Crandall, Asst. Pros. Atty., both of Lansing (Cummins & Cummins, of Lansing, of counsel), for appellee.

BUSHNELL, Justice.

Plaintiff, as administrator of the estate of Genevieve Violet Jenks, deceased, a minor, claims that defendant County of Ingham's negligence in maintaining a highway caused the death of plaintiff's decedent.

At the city limits, where it crosses South Washington Avenue, the city asphalt pavement ends and the county concrete pavement begins. Inside the city the pavement is 38 feet wide from curb to curb. The county pavement is but 20 feet wide. The narrowing of the road takes place within a distance of 64 1/2 feet, there being flatiron shaped strips of concrete at the narrowing part of the road, varying in width from 7 feet, where the strip touches the asphalt to 1 1/2 feet, where the narrowing is accomplished.

The deceased worked at the State Police Barracks at East Lansing and lived south of the City of Lansing. On the evening of November 30, 1936, about 6 p. m., Clyde Jenks was driving his sister to their home and was proceeding southerly on South Washington Avenue. The accident, which resulted in the death of Jenks and his sister, occurred on the above described county road approximately 200 feet south of the end of the narrowing process.

It is plaintiff's theory that the proximate cause of the accident was some ruts or holes along the west shoulder of the narrowing strip which caused the Jenks car to swerve into approaching traffic. The gravel shoulder of the road at this point is 3 or 4 feet wide. This shoulder was frozen on the morning of November 30th, the official temperature at the Weather Bureau that day being a maximum of 24 degrees and a minimum of 9. There is considerable dispute as to the condition of the shoulder. Some witnesses testified there were holes in the gravel from 8 to 10 inches deep and 4 or 5 feet long and about 15 to 18 inches wide, while others insisted there were no holes or ruts of any depth greater than 2 or 3 inches.

A car was approaching from the south just before the accident. The driver of this car, Ross Rhodes, testified that he saw a car coming towards him just south of where the pavement narrows and that it swerved across the road to its left. Rhodes slowed down and pulled over to his proper side of the road, the other car then swerved to the right, back to the left again, and sideswiped Rhodes' car. This witness stated that, until the other car began to swerve, there was nothing to attract his attention, and he did not notice the occupants of the Jenks car until after the accident. The headlamps were lighted on both cars.

Merle Spurbeck, a fifteen year old boy, was riding his bicycle southerly on Washington Avenue. This witness was not permitted to testify as to the speed of the Jenks car when it passed him about 200 feet north of the city limits line. He paid no further attention to the car and next saw it after the crash, while it was still rolling. Spurbeck did not know what the driver of the Jenks car was doing at the time of the accident. Witness Ferris was walking at the time in a southerly direction on the east shoulder of the road, with his back to the scene of the accident, and knew nothing about it until he turned around at the sound of the impact just as the two cars ‘were settling down.’

The trial judge declined plaintiff's request to charge the jury as follows: ‘Should you find that no person now living saw the actions of the deceased, Genevieve Violet Jenks at the time of the accident or immediately preceding thereto, you will presume in the absence of evidence to the contrary that the decedent was free from any negligence contributing to her injury, and was in the exercise of due care for her own safety.’

The charge of the court in this respect is:

‘I have indicated also the burden of proof rests on the plaintiff to show the deceased was free from contributory negligence. It is the duty of any person, under ordinary circumstances, to exercise reasonable and proper outlook for his or her own safety at all times. And that duty, of course, rested on the deceased. I also charge you that by reason of the fact that deceased was a minor at the time of the accident, no negligence on the part of the driver of the car in which she was riding, if any, can be imputed to her. Yet, it is for the jury to consider whether the driver was negligent and if so, whether such negligence was the sole, proximate cause of the accident and consequent injury.

‘If you should find that the deceased met her death by reason of the negligence of defendant, the fact the negligence of Clyde Jenks, driver of the car in which she was riding, contributed to the injury, does not relieve the defendant of responsibility.’

The jury brought in a verdict for the county, upon which judgment was entered. Plaintiff's motion for new trial was denied and he appeals alleging error upon the charge and the exclusion of the testimony of the fifteen year old boy as to the speed of the Jenks car when it passed him about 400 feet from the point of...