Lapachin v. Standard Oil Co.

• Decision Date: 18 September 1934
• Docket Number: No. 98.,98.
• Citation: 268 Mich. 477,256 N.W. 490
• Parties: LAPACHIN v. STANDARD OIL CO.
• Court: Michigan Supreme Court

268 Mich. 477

256 N.W. 490

LAPACHIN

v.STANDARD OIL CO.

No. 98.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Gogebic County; George O. Driscoll, Judge.

Action by Michael Lapachin against the Standard Oil Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.

E. W. Massie, of Ironwood, for appellant.

Jones & Patek, of Ironwood (John S. McDonald, of Grand Rapids, of counsel), for appellee.

EDWARD M. SHARPE, Justice.

Prior to January 11, 1933, plaintiff was of the age of 61 years, a miner employed in the iron mines, and in good health. On said date about 7 o'clock in the morning, he was proceeding to his work, walking easterly on McLeod avenue in the city of Ironwood toward the Aurora Mine, where he was employed. There are no sidewalks on McLeod avenue where the accident occurred, and the street is used for travel by pedestrians as well as by automobiles. The street was covered with snow and there were banks of snow on each side to a height of about 3 1/2 feet. The traveled portion of the street was then about 20 feet wide. Plaintiff was walking on the right side of the street in company with one Lewinski when he was struck by an automobile approaching from the rear. This automobile was owned by defendant and operated by its employee.

Plaintiff claims that the automobile had dim lights; that it was traveling at an excessive rate of speed; that the driver failed to give any warning or signal or blow his horn and without turning to the left to avoid an accident ran into plaintiff, throwing him up into the air a distance of 8 or 10 feet; that as a result of this accident and injury plaintiff was laid up in the hospital for 3 weeks and that it was 54 days before he attempted to do any work; that as a result of the collision he sustained two fractured ribs, a fractured vertebra, an aggravation of osteoarthritis of the spine and that in addition a latent and inactive pneumoconiosis was activated resulting in permanent and total disability; that plaintiff suffered and now suffers severe pain and at times becomes dizzy; that he is unable to work and is permanently and totally disabled as a result of the accident.

Defendant claims that as the car approached plaintiff and while in the middle of the road, the driver of the car blew his horn; that as the car approached within a few feet of the two men, plaintiff became excited and turned toward the center of the road; that the car was not traveling more than nine miles per hour; and that plaintiff ran into the right rear fender of the car.

The case was tried without a jury and a judgment was rendered in favor of plaintiff in the sum of $3,000. Defendant appeals, assigning as grounds that plaintiff was as a matter of law guilty of contributory negligence; that defendant or its agents were not negligent; that the court committed reversible error in admitting certain testimony of plaintiff; that the award of damages was excessive.

The defendant contends that plaintiff was guilty of contributory negligence in walking upon the street where he did at the time of the collision. While there is a dispute as to how the accident happened, the preponderance of the evidence is in favor of the plaintiff. Two disinterested witnesses corroborated the testimony of plaintiff as to the manner in which the accident occurred.

In the case of Reynolds v. Knowles, 223 Mich. 70, 76, 193 N. W. 900, 902, and again in the case of Lawrence v. Bartling & Dull Co., 255 Mich. 580, 582, 238 N. W. 180, this court cited with approval the following quotation from a recognized authority on automobile law: ‘'When one is standing in the street in a place where he has a right to be, or is walking along the highway, he can properly assume that the driver of a motor vehicle will not run him down, but will...