Johannes v. Rooks

• Decision Date: 12 November 1948
• Docket Number: No. 63.,63.
• Citation: 322 Mich. 611,34 N.W.2d 456
• Parties: JOHANNES v. ROOKS.
• Court: Michigan Supreme Court

322 Mich. 611

34 N.W.2d 456

JOHANNES

v.ROOKS.

No. 63.

Supreme Court of Michigan.

Nov. 12, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Allegan County; Fred T. Miles, judge.

Action by Shirley Johannes, by Henry Charles Johannes, Sr., her next friend, against Ruth Rooks to recover for injuries sustained by the plaintiff when struck by an automobile driven by the defendant.

From a judgment in favor of plaintiff, the defendant appeals.

Judgment affirmed by divided court.

Before the Entire Bench.

Allaben & Wiarda, of Grand Rapids, for defendant and appellant.

Leo W. Hoffman, of Allegan, for plaintiff and appellee.

REID, Justice.

Plaintiff, a minor, brought this suit by next friend to recover damages for personal injuries inflicted upon her by an automobile driven by defendant. Plaintiff had judgment upon the verdict rendered by the jury. Defendant appeals. An important question in the case arises because of defendant's claim that plaintiff was guilty of contributory negligence, as a matter of law.

The accident occurred shortly before 9 a. m., February 26, 1947, on State highway M 89 west of Fennville near the Peach Belt school. Plaintiff Shirley Johannes was eight years and nine months old and lived with her parents on the north side of M 89 about 20 rods west of the schoolhouse, which was southerly from M 89 and easterly of a north and south road which intersects M 89 with a jog. The Johannes residence was about 300 feet from the intersection. Plaintiff walked easterly on the northerly berm of M 89 to a point about opposite the westerly side of the north and south intersecting road. She there turned to cross M 89, and waited for two westbound automobiles to pass. The two automobiles were near together. A third automobile, also going west (driven by plaintiff's witness VanderMeer), was about 800 feet back of the two that passed plaintiff. Plaintiff's view to the west was temporarily obstructed by the two automobiles that had just passed in front of her. She then started to cross M 89. There is no testimony directly showing that plaintiff looked to the west before starting to cross M 89. Witness VanderMeer testified that she looked, but did not testify which way she looked. He further testified that when defendant Rooks' car was about 300 feet from the intersection, defendant sounded her auto horn and plaintiff was at the center of the pavement going south, tried to stop but couldn't on account of the slippery pavement and the two [plaintiff and defendant's car], came together about two feet south of the center of the intersection. The left end of the front bumper and left mud fender of defendant's car collided with plaintiff. Plaintiff was thrown some distance and her leg was broken.

Defendant was a teacher in the Fennville school. She had driven the road in question, M 89, several time before, when another road was rendered impassable, in going to her school duties in Fennville. She testified she was driving 30 to 35 miles per hour. About 600 feet westerly of the point of collision is the crest of a small hill, and there is a slight downgrade to the point of collision. The highway from the crest of the hill through the intersection was covered with packed snow and was extremely slippery.

Plaintiff's witness VanderMeer testified defendant was driving 50 miles per hour; that after the two cars passed plaintiff, plaintiff looked and started across; that defendant's car was some 300 feet west of plaintiff when VanderMeer heard defendant honk her auto horn; and that defendant's car started to swerve a ‘good 200 feet’ back from where plaintiff was standing. A sign ‘school zone’ was 400 feet west of the cross road and on the south side of the highway. A scraper had gone through and piled up the snow and the snow was also scraped off the berm.

Defendant Rooks testified that as she came over the brow of the hill, she saw other cars on the highway approaching, coming west. She testified that she met the second car ‘about a car length’ before she saw plaintiff Shirley. Defendant testified that when she first saw Shirley, Shirley was on the north side of the pavement running toward the south toward the school building, that she did not look toward defendant, that she was looking in the direction that defendant was driving, i. e., east. Defendant says that when she saw plaintiff there running south on the ice-covered cement, she blew her horn and stepped on the brake and pulled to her right, and claims plaintiff ran into the left front fender about where the hub cap is, and that after the collision the car after traveling some distance was headed back in the direction defendant was going when it came to a stop off the concrete on the south side of the road.

Plaintiff claims that the testimony supports the statement that the defendant, a school teacher, was driving 50 miles per hour in a school zone downhill upon a very slippery road at about the time children would be on their way to school. Plaintiff further claims that defendant should have noted the school zone sign and should have had her car under control and that defendant for want of proper discharge of the duties incumbent upon her is to be deemed negligent.

Plaintiff's teacher, produced as a witness by the defendant, swore that plaintiff is an average child. She was in the third grade in school.

In Franks v. Woodward, 258 Mich. 447, 243 N.W. 20, the plaintiff was a boy 10 years and 10 months of age at the time of his injury; he was in the sixth grade in school, had missed no grades and was an intelligent boy for his years; he stepped in front of a rapidly traveling automobile when it was only 12 to 20 feet from him. If plaintiff had looked he could have seen the automobile. He was held guilty of contributory negligence.

In Moore v. Cook, 275 Mich. 578, 267 N.W. 567, plaintiff was a girl nine years and eight months of age, in the fourth grade at school, had been raised in the city and was familiar with street conditions. She had been apprized of the danger of crossing in front of an approaching car. Although the car's lights were shining, she evidently stepped in front of the car or ran against the side of the car and was held guilty of contributory negligence. We affirmed the judgment for defendant notwithstanding the verdict.

In the case at bar, plaintiff was younger than either plaintiff in the foregoing cases, the Franks case and the Moore case. It can be considered that the jury found that after waiting for the two cars to pass and while those two cars were briefly obstructing her view westerly to the crest of the hill, plaintiff Shirley determined that the road was clear and that she had an opportunity to pass but that after the two cars had gone still farther and thus cleared the view for her, she was taken by surprise because of the great speed of defendant's car. There was a further element of surprise for her in finding herself unable to stop because of the slippery condition of the road, which possibility she had perhaps not considered as carefully as an adult person would have done. The actions of plaintiff in waiting for the two cars to pass and in endeavoring to stop before fore proceeding into the southerly portion of the highway, show that she was not heedlessly rushing into danger. Whether or not her actions in view of all the circumstances are to be considered as showing she was as prudent and careful as an ordinarily prudent girl of her age, knowledge, intelligence and experience, was a matter for the jury.

Plaintiff had a right to assume that defendant would not approach at such an excessive rate of speed as 50 miles an hour under the conditions then prevailing.

In Clemens v. Sault Ste. Marie, 289 Mich. 254, 286 N.W. 232, plaintiff was a boy eight years and three months of age at the time of his injury. He had been playing at the side of the street with a homemade parachute consisting of a rock tied to a handkerchief which was rolled up when thrown and as it unfolded opened like a parachute. The wind caught this improvised parachute and carried it into the middle of Spruce street. Plaintiff saw the approaching automobile, thought he had time to retrieve his parachute, followed it into the street, but defendant's car was coming at 45 to 50 miles an hour and plaintiff was struck and injured. We say, 289 Mich. at pages 256, 257, 286 N.W. at page 233:

‘The sole question presented is, should the trial court have directed a verdict for defendants on the ground plaintiff was guilty of contributory negligence as a matter of law?

‘The general subject of the degree of care to be expected of children is exhaustively discussed in 1 Thompson on Negligence [2d Ed.], ch. 11, art. 2, §§ 306-318, and in 5 Thompson on Negligence [2d Ed.], ch. 151, art. 8, §§ 6309-6313.

‘We think the rule sustained by the weight of authority is that the question of contributory negligence of a boy of the age of plaintiff under the circumstances of this case was a question of fact for the jury.

‘It is unlawful to expect or demand of any human being judgment or caution not naturally to be expected from persons of his age and capacity. Hargreaves v. Deacon, 25 Mich. 1. In deciding upon the degree of diligence to be required of children,or other persons more or less incompetent, that incompetency must be taken into account; and no higher degree of diligence must be required of such persons than we have a right to expect, or than experience has shown such persons generally would be likely to exercise under like circumstances. Daniels v. Clegg, 28 Mich. 32. * * * The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.'

See also: Zylstra v. Graham, 244 Mich. 319, 221 N.W. 318;Oakes v. Van Zomeren, 255 Mich. 372, 238 N.W. 177;Dedo v. Skinner, 296 Mich. 299, 302, 303, 296 N.W. 265.

Defendant complains of the charge as to the rule of contributory negligence. The court in his charge to...