People v. Fedderson

• Decision Date: 01 March 1950
• Docket Number: No. 74,74
• Citation: People v. Fedderson, 327 Mich. 213, 41 N.W.2d 527 (Mich. 1950)
• Parties: PEOPLE v. FEDDERSON.
• Court: Michigan Supreme Court

Page 527

41 N.W.2d 527

327 Mich. 213

PEOPLE v.FEDDERSON.

No. 74.

Supreme Court of Michigan.

March 1, 1950.

Bland A. Pugh, Detroit, for appellant.

Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor-General, Lansing, Gerald K. O'Brien, Prosecuting Attorney of Wayne County, Michael A. Guest, Assistant Prosecuting Attorney, Detroit, for appellee.

Before the Entire Bench.

BUTZEL, Chief Justice.

Veronica Fedderson was charged with negligent homicide and was found guilty by a jury.She was driving in a westerly direction along East Jefferson Avenue in the city of Detroit, between the cross streets of Marlborough and Charlmers at about 3:45 in the afternoon of September 22, 1944, a clear, dry day.The avenue is eighty feet wide at that point and she was in the lane immediately north of the westbound street car tracks.The deceased, a boy 16 or 17 years of age, was walking across East Jefferson Avenue apparently in a southwesterly direction, although some testimony indicates that he was crossing in a northerly direction.He was walking rather slowly with his head bowed and appeared engaged in 'deep thought.'He looked up and stopped when he saw defendant's automobile.He thereafter either stood still, as some of the testimony indicates, or took a step backward and then forward in indecision.The testimony is conflicting as to whether defendant applied her brakes.She did not blow her horn.There were no skid marks on the pavement.There is some evidence that she began to swerve to the right.The left front fender struck the deceased and he was thrown for a distance of 10 feet.Defendant's vehicle slowed down momentarily after the fatal impact and then leaped forward, struck two cars near the right curb at the intersection and came to a halt against an iron pole.The testimony of the eyewitnesses regarding defendant's speed before striking deceased was conflicting and varied from a minimum of 20 to 25 miles to a maximum of 40 to 50 miles per hour.

A few days after the accident, with a full warning of her legal rights, defendant made a statement to the prosecutor in the presence of a stenographer.She stated and emphatically repeated that she did not see the deceased pedestrian until she hit him and that the steering wheel then flew out of her hands.The entire statement there made was admitted into evidence without objection.During the trial defendant testified that she did not see the deceased until a split second before striking him; that a car directly ahead of her turned right a short time before the accident occurred; that she put her foot on the brake as soon as she saw the deceased and started to swerve, but that Joseph O'Leyar, a passenger in her car, lunged for the emergency brake located under the dashboard on the far left side of the car and in so doing pushed her foot off the brake, though she still retained the wheel; that after she returned to position O'Leyar screamed that she was going to hit a car and again reached over, this time knocking her against the left door as well as dislodging her foot from the brake.When defendant was asked why she did not mention O'Leyar's purported actions at the time she made her statement to the prosecutor, she testified that she wanted to give O'Leyar an opportunity to tell about them.She further testified that she was not sworn to tell the truth in the prosecutor's office though she did so, merely omitting to relate her passenger's actions; that at the time she had not yet seen her lawyer.

O'Leyar categorically denied that he attempted to grab the emergency brake.

Defendant contends that the verdict was contrary to the great weight of the evidence and that the trial court erred in refusing to grant a new trial on that ground.While the testimony conflicts as to the details, there is ample evidence to sustain the conviction.Defendant had the duty of maintaining a proper lookout ahead and of operating her vehicle in a manner that would enable her to stop in the assured clear distance.Did she perform her duty?The day was clear and visibility was good.According to most of the testimony, the deceased must have crossed in front of defendant's automobile before he was struck.Even had he been crossing from south to north, he was not moving rapidly and at the time of the impact was either standing still or he took a step backward and forward, but remained in relatively the same position.In all events he was directly in the path of defendant's car and yet, as she testified, she did not see him until a split second before striking him.The record supports a finding that she failed to exercise the amount of observation that a normal, prudent driver would have under the circumstances, and that this failure was the proximate cause of the accident.

Defendant contends that the remarks and conduct of the trial judge were prejudicial.Before the jury was impaneled, defendant's counsel of record and apparently her second counsel in the case appeared and in seeking to be excused informed the court that the previous evening he was told that there was another counsel retained.After some discussion with the defendant, regarding what arrangements were to be made concerning her defense, he reported to the court that she had succeeded in retaining another attorney.The court, apparently in the presence of some veniremen, stated that that was three she had and inquired if the new counsel was prepared to proceed.The court then recessed and after lunch the jury was chosen.We are unable to see anything prejudicial in the statement of the number of lawyers retained.

During the trial the judge advised the defendant to wait until questioned and not to volunteer anything.The trial court had control of the proceedings, C.L.1948, § 768.29;Stat.Ann. § 28.1052, and properly instructed the defendant.

The defendant testified that she had been driving in the city of Detroit for 20 years...