Ludwick v. Hendricks

• Decision Date: 05 January 1953
• Docket Number: No. 104,104
• Citation: Ludwick v. Hendricks, 335 Mich. 633, 56 N.W.2d 409 (Mich. 1953)
• Parties: LUDWICK v. HENDRICKS et al.
• Court: Michigan Supreme Court

Page 409

56 N.W.2d 409

335 Mich. 633

LUDWICK v. HENDRICKS et al.

No. 104.

Supreme Court of Michigan.

Jan. 5, 1953.

Victor E. Bucknell, Vicksburg, for plaintiff and appellant.

Raymond H. Dresser and Howard J. Bush, Sturgis, for defendant and appellees.

Before the Entire Bench.

BUTZEL, Justice.

At or about 2:30 a. m. on November 14, 1949, while walking across US-112, also known as Chicago Street in the city of Sturgis, Michigan, John Ludwick, plaintiff was struck and severely injured by an automobile owned by Ernest Hendricks and driven by Mary Hendricks, his wife, defendants herein. Plaintiff brought this action to recover for the injuries he received. On defendants' motion at the conclusion of plaintiff's case, the judge directed a verdict for defendants on the ground that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appeals, claiming that he was not guilty of contributory negligence as a matter of law, but that even if he were, he still would be entitled to recover under the doctrine of subsequent negligence.

Chicago Street runs in an easterly-westerly direction, is approximately 40.70 feet wide and his four traffic lanes. Jacobs Street runs into Chicago Street from the north, but does not cross it. On Chicago Street and approximately 210 feet west of Jacobs Street, as paced off by plaintiff's son, there is the driveway of the American Legion Home of Sturgis. At some point between Jacobs Street and the American Legion Home, Chicago Street is intersected by Grove Street. There is a gasoline station at the corner of Grove and Chicago Streets, but the record fails to disclose at which corner it is located. It was raining and freezing on the night of the accident and visability was poor.

Mary Hendricks, called as a witness under the statute for cross-examination, testified that she had gone to the Legion Home at about 10:30 on the evening before the accident to serve the midnight lunch at some festivities which were going on there. She further testified that she had had one drink between 10:30 and 11:00 p. m., but none thereafter. She stated that she left the Legion Home about 2:30 a. m. with two other women. She also testified that she turned the car's lights on before she left the curb, started up, shifted the gears and was proceeding east on Chicago Street at about twenty miles per hour in the righthand lane when her car struck plaintiff. She did not see plaintiff until the instant before the impact and does not know where he came from. She did apply the brakes immediately upon seeing him. She further testified that she called upon plaintiff at the hospital the following day, and that he then said that he had gone to a tavern and the hotel on the afternoon preceding the accident to drink, but that he did not say how many beers he had had. She also stated that there were cars parked on either side of the street and that there was traffic coming from the other direction and that she had passed a car going in the opposite direction just before the accident occurred.

Plaintiff testified that he had left his home about 2:00 o'clock in the afternoon, went to the postoffice, stopped in the B & W (a tavern) and bought a cigar and was 'on the street watching the doings in Sturgis.' Along about midnight he met one Charley Harder at the hotel, where they each had one glass of beer. He said that he then went home, stopping at a lunch room on the way to purchase a cigar. He walked west along the north side of Chicago Street and crossed Jacobs Street before turning to cross to the south side of Chicago Street. He testified that the waited at the curb until the traffic had 'cleaned off' before proceeding to cross. Plaintiff said that when he reached the middle line he looked and did not see anything. Then he testified that he saw defendant's car on the west side of the filling station. He said that there were no lights on the car, but he could see it by the illumination furnished by the lights at the filling station; that he was able to see the street for about oneeighth of a mile westward by the street lights and the lights at the gas station. He estimated that the car was about 300 feet away, quite close to the driveway from the legion home, at the time he first saw it. Later he said that the gas station may have been 100 to 125 feet away. Plaintiff testified that he started to cross the south half of the street, misjudged the speed that the car was going and that when it got pretty close he tried to dodge it but was too slow. When asked whether he had continued to watch the car as he proceeded, plaintiff answered:

'I did when I seen it was too close and I could not get out of the way. I didn't hear any horn blow.'

From this the only inference to be drawn is that plaintiff did not observe the car's progress from the time he first saw it until just before it struck him. However, after the noon recess plaintiff was recalled to testify as to the extent of his injuries, and at that time he testified as follows on crossexamination:

'I stopped in the center of the street, and when I got hit, it might have been three or four...