Leary v. Fisher

• Decision Date: 03 December 1929
• Docket Number: No. 100.,100.
• Citation: 248 Mich. 574,227 N.W. 767
• Parties: LEARY v. FISHER et al.
• Court: Michigan Supreme Court

248 Mich. 574

227 N.W. 767

LEARY

v.FISHER et al.

No. 100.

Supreme Court of Michigan.

Dec. 3, 1929.

Error to Circuit Court, Oakland County; Frank L. Covert, Judge.

Action by Joseph Leary against Russell H. Fisher and another. Verdict for plaintiff, and an order granted a new trial unless plaintiff should elect to take judgment in a reduced amount, and the plaintiff and the named defendant bring error. Affirmed.

Argued before the Entire Bench. Kerr, Lacey & Scroggie, of Detroit (Robert B. Murchie, of Detroit, of counsel), for Leary.

Prentis, Pugh, Fitch & Carpenter, of Detroit, for Fisher.

POTTER, J.

Plaintiff sued defendant to recover damages for personal injuries resulting from defendant's negligence. Plaintiff, just prior to his injury, was working with a concrete mixer on the east side of Coolidge highway in Wayne county, between the seven-mile and eight-mile roads. Defendant Fisher was operating a Ford car, and was in defendant Leonard's employ. Plaintiff, to get a drink of water, started northwesterly across the highway. Defendant Fisher was driving north on the highway about 150 feet distant. Plaintiff was struck by the car operated by defendant Fisher, and seriously injured. The ad damnum clause of the summons claimed damages not exceeding $10,000. There was verdict for $15,000. A motion was made by plaintiff, and granted by the court, amending the ad damnum clause in the summons. A motion for judgment notwithstanding the verdict and a motion for a new trial was made and heard. The trial court made an order granting a new trial unless the plaintiff should elect to take judgment for $5,000 instead of $15,000. The case is here on error assigned by both plaintiff and defendants. Plaintiff says the trial court erred in reducing the amount of the judgment to $5,000 and that he is entitled to have judgment rendered on the verdict of $15,000. Defendant says plaintiff was guilty of contributory negligence as a matter of law, and the court erred in not directing a verdict for defendants and in not granting a new trial.

At the time of the injury, work was being done along the highway; a number of automobiles were parked on the right-hand side; there was a danger sign, two piles of lumber along the easterly edge of the pavement, and a shed on which was fastened a red flag. There was plainly visible a pile of sand and a pile of cement located east of the pavement where a cement mixer was being operated, and on the opposite side a pile of rails used for a construction track. There was proof defendant Fisher was driving at an unreasonable rate of speed in this repair zone in violation of the warning signs, and that at the time of plaintiff's injury defendant Fisher was driving on the wrong side of the highway.

[1] The defendant claims the plaintiff was guilty of contributory negligence, and it is of course essential for plaintiff to show, in order to recover, not only defendant's negligence, but his own freedom from contributory negligence. The burden of proof is upon plaintiff. There was evidence of defendant Fisher's negligence. The important question is plaintiff's contributory negligence. He must show, in order to be entitled to recover, that he was, at the time of the injury, in the exercise of due care. Defendant claims that plaintiff exercised no care at all, and no care at all is not due care or such reasonable care as will permit plaintiff to recover. It is a want of care, the gist of negligence, which on the part of the plaintiff, if it contributed to his injury, bars recovery. The plaintiff had a right to go across the highway. He was bound to know it was more or less dangerous by reason of its use for automobile traffic, but he was not bound to anticipate defendant would drive at an excessive rate of speed or...