Martin v. Leslie

• Decision Date: 02 April 1956
• Docket Number: No. 9,9
• Citation: 345 Mich. 305,76 N.W.2d 71
• Parties: Lincoin MARTIN, Plaintiff-Appellee, v. Kenneth LESLIE, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 71

76 N.W.2d 71

345 Mich. 305

Lincoin MARTIN, Plaintiff-Appellee, v. Kenneth LESLIE, Defendant-Appellant.

No. 9.

Supreme Court of Michigan.

April 2, 1956.

Carl A. Braun, Royal Oak, for defendant and appellant.

Dell & Heber, Keith J. Leenhouts, Royal Oak, for plaintiff and appellee.

Before the Entire Bench.

SMITH, Justice.

This is a pedestrian accident case. The accident occurred shortly after midnight on December 19, 1951. Plaintiff had been forced to abandon his car and was walking home in a westerly direction on the 13-Mile Road. There was much snow on the ground. A police officer testified 'there was enough snow on the road so you couldn't see the road.' Plaintiff testified that it also obscured the sidewalk. 'You could not tell where the sidewalk was at,' he said. The walk was, moreover, to his knowledge (he lived in this vicinity) in poor condition, 'humped up in a lot of places.' Consequently, at the time of the accident, plaintiff had left it and had taken to the road. In this area the vehicular traffic had left wheel tracks in the road roughly in the center, 1 track in the south lane, the other in the north, except where cars had passed. Plaintiff walked in the southerly track. From time to time he could see ahead of him the projection of car lights from his rear, at which time he would step aside to the south, wait for the car to pass, and then resume his journey. He was struck from the rear by the defendant's car, which he had failed to observe, although he testified that he had turned and made an observation of approaching traffic some 20 seconds prior to the time he was struck.

The defendant urges that plaintiff was guilty of contributory negligence as a matter of law. He asserts that plaintiff's injuries resulted from his own inattention to his situation of danger, combined with his clumsiness: 'He either slipped and fell or else he walked over there,' i. e., into defendant's passing car, 'in panic.' It was a clear night. Defendant testified that 'I could discern anything in the road with my lights about 300 feet.' His testimony continues that he first saw plaintiff when about 200 feet from him, 'out in the center of the road, straddling the center line.' He did not apply his brakes. His plan was to veer to his right to such an extent that 'had Martin not moved, I would have been two or three feet away from him.' Martin did, however, move, according to defendant, and thus brought on his own injuries. He was not, says defendant, struck by his car, but rather 'he ran into my car.' Both sides argue the physical evidence in support of their theories. Plaintiff introduced evidence tending to establish that defendant's car had not veered out at all before striking him from the rear, defendant denying such impact and countering by showing no damages to the front of the car, but only to the radio antenna and spotlight on the left side. Plaintiff rebuts with testimony that when he was struck (possibly by the front bumper) he 'went up like that,' and was thrown against the antenna and spotlight, that he did not slip, and that, in fact, the radio antenna was too high to be damaged by his slipping and falling into it. All of this was before the court and jury.

Judgment for plaintiff was entered upon the jury's verdict. The defendant has appealed from such judgment and from the denial of his motion for judgment non obstante veredicto. Errors assigned turn primarily on the proposition that plaintiff was guilty of contributory negligence as a matter of law. We note in passing that one of defendant's statements of questions involved relates to what the trial court should 'have permitted and instructed the jury to determine' with reference to 'what plaintiff would have seen' and 'what judgment and belief plaintiff would have formed' under certain circumstances. We will dispose summarily of this question. The instructions to the jury are not included in the record here on appeal and the question is not before us. We also note that appellant's brief does not conform to Michigan Court Rule No. 67 (1945), particularly section 1, which reads in part:

'The stated questions herein required shall be used in the same order as topical subheadings throughout the 'argument' in appellant's brief provided for in section 3 of this rule.'

People v. Funk, 321 Mich. 617, 33 N.W.2d 95, 5 A.L.R.2d 1077. Our consideration of this brief should not be taken as precedent.

Defendant first asserts that plaintiff was unlawfully on the highway, citing to us that plaintiff was walking on 13-Mile Road contrary to section 656, P.A.1949, No. 300, C.L.1948, Supp.1954 § 257.655, Stat.Ann.1952 Rev. § 9.2355, which provides:

'Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.'

It is not enough, however, to call this statute into operation, merely that a sidewalk be constructed at the spot in question. It must be usable. It may be partially destroyed by neglect or the elements, or it may be covered by water, sand, or snow. In such event the pedestrian who insists on following its probable course might well be heedless of his own safety. The usability of the walk is ordinarily (and in this case) a question of fact. The question is not a new one to us. In Jacobson v. Carlson, 302 Mich. 448, 4 N.W.2d 721, 722, plaintiff Jacobson testified he had left the sidewalk and proceeded in the street because the sidewalk beyond his point of departure was covered with deep, unshoveled snow. This testimony being contradicted by other witnesses, we said that it properly left a question for the jury which was presented to them by the judge in his charge as follows:

"There are some provisions of our statute which bear upon the question of negligence and contributory negligence. We will take the question of contributory negligence first. It is one of the provisions of our statute that where sidewalks are provided it shall be unlawful for pedestrians to walk upon the main traveled portion of a highway. Where sidewalks are not provided, pedestrians shall when practicable walk on the left side of the highway, facing traffic which passes nearest. Now, under that provision of the statute, if there was a usable sidewalk along the street at the point of the accident and Jacobson did not use it, but went into the street, he would be himself guilty of negligence, which would prohibit his recovery. The testimony is in dispute, as I recollect, about that, as to whether or not there was a usable sidewalk there, and it is for you to say under the evidence if there was or not. Now, if there was no sidewalk there then Jacobson had the legal right to walk in the highway on the side upon which he would face traffic. Now, when so walking it was his legal duty to take reasonable care for his own safety. You can see readily the purpose of that provision of the law. It is a late provision provided by our legislature that people should walk so as to face traffic and seeing it coming can step aside. So you see if you find that there was no sidewalk there and Jacobson had the right to be on the highway, then the question comes up to you as to whether or not he used the reasonable care which an ordinarily careful and prudent person...