Morris v. Radley

• Decision Date: 11 October 1943
• Docket Number: No. 65.,65.
• Citation: 306 Mich. 689,11 N.W.2d 291
• Parties: MORRIS v. RADLEY et al.
• Court: Michigan Supreme Court

306 Mich. 689

11 N.W.2d 291

MORRIS

v.RADLEY et al.

No. 65.

Supreme Court of Michigan.

Oct. 11, 1943.

Death action by Ellen Mary Morris, as special administratrix of the estate of Jean Morris, deceased, against Edward Radley and another. From a judgment for plaintiff, defendants appeal.

Affirmed as to named defendant, and, as to defendant Board of Road Commissioners of Oceana County, reversed without new trial.

WIEST and CHANDLER, JJ., dissenting.Appeal from Circuit Court, Oceana County; Charles O. Arch, judge.

Before the Entire Bench.

Alexander, McCaslin & Cholette, of Grand Rapids, for defendants and appellants.

J. Donald Murphy, of White Cloud, Wm. J. Branstrom, of Fremont, and Rottman & Siegel, of Detroit, for plaintiff and appellee.

BOYLES, Chief Justice.

This is an action brought by the personal representative of the estate of one Jean Morris, deceased, a child of the age of four years, nine months and 28 days at the time of her death, to recover for the pecuniary loss suffered by her parents by reason of the accident that caused her death. The action is brought pursuant to the provisions of the present death act, No. 297, Pub.Acts 1939, Stat.Ann.1942 Cum.Supp. §§ 27.711, 27.712. Trial by jury resulted in verdict and judgment of $2,539.50 for plaintiff, from which defendants appeal.

On August 25, 1941, the child was living with her grandparents, the Gruettes, at their farm located on the north side of the Walkerville road about five miles outside of the village of Hart. The Walkerville road runs in an easterly and westerly direction, is a hard surfaced black top road of about 20 feet in width. It is a heavily traveled highway. On this particular day, the defendant Edward Radley, an employee of the Oceana county road commission, had driven a pickup truck owned by the latter to do some work on the highway. About 4:30 in the afternoon, he was driving back in a westerly direction on this Walkerville road towards Hart; as he approached the Gruette's driveway he was traveling about 45 to 50 miles per hour. He had a clear and unobstructed view of the driveway for a distance variously testified to by different witnesses, from 200 feet to an eighth of a mile. As he came over the crest of a hill, variously testified to as being from 70 feet to more than 200 feet from the driveway, Radley saw a car coming toward him about opposite the driveway, on its own (south) side of the road. They passed, each on his own side of the road, and Radley says that about this time he saw the child running across the road in front of the Gruette driveway. Defendant Radley's testimony is conflicting, and not in harmony, as to distances and as to what then occurred. He first testified he had a clear, unobstructed view of the driveway 200 feet; that he first saw the child when she was in the road, about 200 feet from the Gruette driveway; later, he testified he first saw the child 50 feet east of the driveway as he was meeting the other car, that he first saw the child ‘about in the middle of the center of the road,’ ‘about 44 feet away from my car,’ that he did not see the child until within 50 feet of her. He testified:

‘A. I didn't see her until she was about in the center of the road.

‘Q. Where were you looking, Mr. Radley? A. I think it was just about that time I was meeting this other car and I guess I must have been watching that. * * *

‘Q. Then you were looking down the road? A. Yes, sir.

‘Q. But you never saw this little girl? A. Not until I was within fifty feet of her.

‘Q. She was there to be seen if you had looked, wasn't she? A. She must have been there.’

Again, later on, Radley testified he saw the child:

‘When she was about half way to the center of the road. * * *

‘Q. You have indicated that you saw the girl when she was about half way to the center of the road? She was then in the driveway? A. Yes, sir.

‘Q. Was she running then? A. Yes, sir.’

Radley testified he swerved his truck to the left-the south part of the road-and that the child ran into the side of his truck. He did not try to stop, apply his brakes, or blow his horn. Again, he later testified:

‘Q. You testified that when you first saw her she seemed to be running in a southeasterly direction? A. Yes, sir. Just while the car crossed the road.

‘Q. If she was five feet in from the bank and was coming toward you she was coming in a diagonal direction, was she not? A. She was running toward the other driveway, which was--

‘Q. She actually traveled more than five feet, didn't she? A. Maybe she did.

‘Q. Did she, or didn't she? A. I don't know.

‘Q. Did you see her at all, Mr. Radley? A. I saw her at the edge of the road.

‘Q. And she was coming south, you say? A. Yes, sir.’

The child was almost instantly killed by the accident. Radley's own testimony sufficiently indicated that there was a question of fact to be submitted to the jury as to whether he was guilty of negligence. If he could have seen the child when he was far enough away to stop and made no attempt to do so, or give warning of his approach, he was guilty of negligence. If the child was in the center of the road, midway between the north and south lanes, running south across the pavement when Radley first saw her, even at 50 feet distance, he could have continued through on his own (north) lane, or swerved to the shoulder on the right, without striking the child. If, as he says, he swerved to his left, into the south lane, he was on the wrong side of the road when his truck sideswiped the child after she had reached a place of safety from his westbound truck. There was no occasion for him to watch the other car passing-it was on its own side. This is not a ‘sudden darting’ case, where the driver is confronted with the sudden emergency of a child darting into the road. Radley, had he been reasonably alert and observant, probably might have prevented the accident. In view of his own testimony, the court did not err in submitting to the jury the question of fact as to whether Radley was guilty of negligence.

Defendants claim the court erred in refusing to submit to the jury the question whether the child was guilty of contributory negligence, as a matter of fact. The court charged the jury that the child was not guilty of contributory negligence, as a matter of law. She was under five years of age, had never attended school, was bright, had permission from her grandparents to cross the road and visit some little girls on the other side. The court did not err in refusing to submit the issue of contributory negligence to the jury. Johnson v. City of Bay City, 164 Mich. 251, 129 N.W. 29, Ann.Cas.1912B, 866;Love v. Detroit, J. & C. R. Co., 170 Mich. 1, 135 N.W. 963;Beno v. Kloka, 211 Mich. 116, 178 N.W. 646. In Easton v. Medema, 246 Mich. 130, 224 N.W. 636, this court had under consideration whether a child under seven years of age could be guilty of contributory negligence. The result was an equally divided court. Defendants, in claiming the court should have submitted the question of contributory negligence to the jury, now rely on Tyler v. Weed, 285 Mich. 460, 280 N.W. 827. In that case, this court considered the claim that a child under seven years of age was conclusively presumed to be incapable of contributory negligence, as a matter of law. After citing and discussing many dicisions, this court declined to adhere to the common-law rule that children under seven years of age could not under any circumstances be guilty of contributory negligence, as a matter of fact. Applying the rule of age, intelligence, experience, judgment and ability laid down in the Tyler case, the court in the case at bar did not err in instructing the jury that the child was not guilty of contributory negligence. While the statement in Colvaruso's Guardian v. Stroh Brewery Co., 301 Mich. 245, 3 N.W.2d 261, was dictum because the point was not necessary to decision, the opinion does state that a boy three days less than four years old cannot be guilty of contributory negligence.

Defendants also seek reversal on the ground that the court failed to give certain of defendants' request to charge, relating to the elements of damages. The court correctly charged the jury that if it found for plaintiff, it should allow any medical, hospital and funeral or burial expense if the estate was found liable for any such, and allow deceased's future earnings and contributions to her parents until her twenty-first birthday, deducting the reasonable expense that would have been incurred by the parents for the child's maintenance during that period. Present worth of future earnings of the deceased was correctly defined. While the charge in these respects might have been amplified, as requested by defendants, the elements of damages were covered in the charge. The trial court is not required to use the language asked for by counsel in requests to charge if the jury is correctly and adequately informed. We find no reversible error in the charge or in receiving testimony as to damages. It must be admitted that in cases of this nature, there is no precise yardstick with which damages can be measured. Nor can we say that the verdict was excessive under the record in the case.

Defendant Radley was an employee of defendant board of county road commissioners of Oceana county at the time of the accident. The truck was owned by the road commission, and being operated on the public highways by the county employee in the performance of his work for the county. The case was tried, and the judgment entered on June 6, 1942, at which time this court had decided that the defense of governmental immunity was not available to the defendant county road commission. Miller v. Manistee County Board of Road Com'rs, 297 Mich. 487, 298 N.W. 105, 136 A.L.R. 575. For that reason, the defendant county road commission did not interpose this defense in the pleadings or at the trial. On July 22, 1942, defendants filed their claim of appeal. On October 21, 1942, ...