Reynolds v. Knowles

• Decision Date: 04 June 1923
• Docket Number: No. 26.,26.
• Citation: 193 N.W. 900,223 Mich. 70
• Parties: REYNOLDS v. KNOWLES et al.
• Court: Michigan Supreme Court

223 Mich. 70

193 N.W. 900

REYNOLDS

v.KNOWLES et al.

No. 26.

Supreme Court of Michigan.

June 4, 1923.

Error to Circuit Court, Calhoun County; Walter H. North, Judge.

Action by George I. Reynolds against Henry A. Knowles and another. From a judgment for plaintiff, defendants bring error. Affirmed.

Argued before FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Don. W. Van Winkle, of Howell, and John C. Davis, of Battle Creek, for appellants.

Burritt Hamilton and Emil E. Storkan, both of Battle Creek, for appellee.

MOORE, J.

This is an action to recover for injuries received by the plaintiff, who was struck by an automobile owned by Adelbert E. Knowles, and operated by his son Henry A. Knowles. Plaintiff was struck by the automobile on October 24, 1920, between the hours of 9 and 9:30 o'clock in the evening.

The accident happened on Lake avenue just south of the city of Battle Creek. Lake avenue is paved, and at the point where the accident occurred is paved with asphalt and has a curb six or eight inches high. There is no sidewalk on the side of the street where the accident happened. At the time of the accident a drizzly mist was falling. The pavement was slippery. Defendant Henry A. Knowles was accompanied by three women, who were waiting to take a street car, and who were asked to ride by young Knowles, who did not know them. They were not called as witnesses.

Earlier in the evening an automobile had run into a wagon and wrecked it at the point where the accident occurred. The plaintiff and Catherine Richards were taking some of the wreckage out of the street to a near house, and had removed all of it out of the street except some blankets. Plaintiff at the time he was struck was on the west side of the pavement near the curb and was leaving the pavement to go home. Plaintiff suffered two broken legs and a bruised arm and side, and received injuries to his hand and wrist and was confined to the hospital about ten weeks.

Plaintiff declaration counted upon statutory negligence in the violation of the State Motor Vehicle Law, negligence in the violation of the local regulations, and common-law negligence. The jury returned a verdict for plaintiff in the sum of $2,500.

The errors relied upon are grouped by counsel as follows:

1. Error in the voir dire examination of the jury in the introduction of the question of automobile insurance. Error in the remarks of the court in his rulings in reference thereto. And error committed by the court in excusing a juror for cause who was a policyholder in the Citizens' Mutual Automobile Insurance Company and thereby granting to plaintiff six peremptory challenges.

2. Error in denying defendants' motion for a directed verdict on the ground that no actionable negligence on the part of defendants was proved.

3. Error in denying defendants' motion for a directed verdict on the ground that plaintiff was guilty of contributory negligence.

4. Error in refusal to give defendants' requests to charge and in the charge as given.

1. In examining the jury it developed that one of them had an interest in the Citizens' Mutual Automobile Insurance Company of Howell, and counsel for the plaintiff challenged him for cause. This challenge was overruled. Counsel for plaintiff challenged five jurors peremptorily, and defendant excused three for the same reason, and both counsel stated they passed the jury for cause.

At this time the court said to counsel for the plaintiff that he thought he had erred in declining to excuse the juror who had been challenged for cause, and would allow counsel for the plaintiff another challenge, and another juror was challenged by him. The defendants' counsel challenged two other jurors peremptorily.

We quote from the record:

‘Mr. Van Winkle: At this time, we having exhausted all our peremptory challenges, desire to ask that this be declared a mistrial and the case be continued over the term of account of prejudicial remarks of counsel for the plaintiff in his examination of the jury, and the remarks of the court thereon, and also in instructing the jury, and for the additional remark of the court in granting the challenge for cause and in granting the challenge for cause.

‘The Court: The application will be denied and an exception may follow this ruling. I ask if with that exception the jury is satisfactory.

‘Mr. Van Winkle: Yes.

‘The Court: You may swear the jury.’

It will be noted that it was not claimed that the men who constituted the jury were not competent, fair, and impartial. We do not think this was reversible error. See Atlas Mining Co. v. Johnson, 23 Mich. 36;Peter v. Railway Co., 121 Mich. 324, 80 N. W. 295,46 L. R. A. 224, 80 Am. St. Rep. 500;Church v. Stoldt, 215 Mich. 469, 184 N. W. 469; 16 R. C. L. § 66, p. 248.

2. It cannot be said as a matter of law that defendant Henry A. Knowles was free from actionable negligence. His own testimony shows he was running 12 miles an hour; that the night was dark and rainy; that the rain was on his windshield so as to obstruct his vision, as did the lights of approaching automobiles; that he sounded no warning; that he did not see the plaintiff until the plaintiff was struck. We do not think it can be said as a matter of law that his conduct was free from negligence. See sections 4817 and 4818, C. L. 1915; Levyn v. Koppin, 183 Mich. 232, 149 N. W. 993;Harnau v. Haight, 189 Mich. 600, 155 N. W. 563;Darish v. Scott, 212 Mich. 139, 180 N. W. 435;Ott v. Wilson, 216 Mich. 499, 185 N. W. 860; Huddy on Automobiles (5th Ed.) p. 376.

3. Can it be said as a matter of law that plaintiff was guilty of contributory negligence? We quote some of the testimony of the plaintiff:

‘We were watching the street at all times. I had given them (some blankets) to Miss Richards and had started to step off the cement driveway to go home. I was about one step from the curb, probably between two and three feet. Before leaving Miss Richards I had looked to see if any automobiles were coming. I looked toward Battle Creek and also in the other direction. I did not see any automobiles coming from Battle Creek.

‘Q. How long do you say elapsed between the time you looked and the time you were struck? A. It is pretty hard to say. I don't believe I could tell.

‘Q. What would be your best judgment on it? A. I would not imagine more than a minute.’

The trial judge charged the jury at considerable length upon the subject of negligence. We quote some of his charge:

‘I therefore charge you that before the plaintiff can recover in this suit he must prove, by a preponderance of the evidence, that the defendants owed one or more of the duties to the...