Richardson v. Williams

• Decision Date: 24 January 1930
• Docket Number: No. 44.,44.
• Citation: 228 N.W. 766,249 Mich. 350
• Parties: RICHARDSON v. WILLIAMS.
• Court: Michigan Supreme Court

249 Mich. 350

228 N.W. 766

RICHARDSON

v.WILLIAMS.

No. 44.

Supreme Court of Michigan.

Jan. 24, 1930.

Error to Circuit Court, Calhoun County; Blaine W. Hatch Judge.

Action by Nettie Richardson, administratrix of the estate of Wallace Richardson, against Vevah Williams. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Argued before the Entire Bench.Bailey & McAuliffe, of Battle Creek, for appellant.

Hamilton, Cleary & Storkan, of Battle Creek, and F. H. Dusenbury, of Mt. Pleasant, for appellee.

WIEST, C. J.

Wallace Richardson, while crossing the pavement on Lafayette avenue, outside of the city of Battle Creek, at the noon hour, November 9, 1927, was struck and instantly killed by an automobile, owned by defendant and driven by her daughter, by permission. This action is under the Death Act (Comp. Laws 1915, §§ 14577, 14578). Plaintiff had verdict and judgment, and defendant reviews by writ of error.

Plaintiff called eyewitnesses to establish the negligence of the driver of the automobile and to show the care exercised by the deceased. Defendant also called eyewitnesses to show want of care by the deceased. All the circumstances attending the accident, inclusive of the acts of the deceased, were testified to by several eyewitnesses. The conflict between the eyewitnesses called by the plaintiff and those called by defendant presented a sharp-drawn question of fact for determination by the jury relative to the contributory negligence of plaintiff's decedent. The court, under such circumstances, was in error in giving the following instruction:

‘I charge you that this action having been brought under what is known as the Death Act, the plaintiff's decedent is presumed to be free from contributory negligence as to having used due and ordinary care to avoid the injury, in the absence of any direct evidence to the contrary. In other words, when a person is injured by another and dies and there are no witnesses as to the happening of the injury, the law presumes that such injured person was exercising reasonable and ordinary care at the time of the injury with a view to his own safety, and such presumption applies only to the extent to which the same have been rebutted by direct evidence to the contrary.’

The jury must have understood that the instruction stated a rule for their guidance. The instruction added the presumption to the weight the jury might afford the testimony in behalf of plaintiff, and placed upon defendant an unwarranted handicap.

In denying defendant's motion for a new trial, the circuit judge stated: ‘While it is true that said presumption has no weight when there is direct evidence to the contrary still the plaintiff having requested same, is entitled to have the jury instructed as to said presumption that prevails in death cases, for the reason that said presumption does stand in the place of evidence, in case there is no direct evidence introduced to the contrary and it was the duty of the jury to consider it to that extent, and they being the sole judges as to the facts, had a right to consider the same and unless they were satisfied that defendant had proved by direct evidence, which they believed, that said plaintiff's decedent did not exercise due care and caution and was negligent in some regard then the same would prevail and said instruction construed with the rest of the charge was not erroneous and did not mislead the jury.’

This but emphasizes the prejudicial effect of the instruction in this particular case. The common instinct of self-preservation is the basis for the presumption that a person killed, under unknown circumstances, was in the exercise of ordinary care. The presumption, however, is indulged only in the absence of direct and credible evidence on the subject. When plaintiff called eyewitnesses to the accident, she vouched for their credibility, and, their testimony being direct on the subject, excluded any and all resort to the presumption. The presumption never survives disclosed facts. When the presumption is permissible, its function is only provisional; it serves, if at all, alone and never in company with evidence, and therefore cannot be weighed in the scale with or against evidence. The presumption is not evidence at all, but only a rule relative to procedure.

We quote from the syllabus in Baker v. Delano, 191 Mich. 204, 157 N. W. 427: ‘The office or effect of a true presumption is to cast upon the party against whom it works the duty of going forward with evidence; it has the force and effect of a prima facie case and temporarily, at least, relieves the party in whose favor it arises from going forward with the evidence. If nothing further is adduced, it may settle the case in favor of the party for whom it works, and, on the other hand, when the other party has gone forward with his evidence and the prima facie case is overcome, the force of the presumption is spent.’

In the case at bar, the presumption did not enter the issue at all, for the facts and circumstances of the killing were witnessed and some of the eyewitnesses were called by the plaintiff. Upon the subject of the presumption, see Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N. W. 536;Union Trust Co. v. American Commercial Car Co., 219 Mich. 557, 189 N. W. 23;Noonan v. Volek, 246 Mich. 377, 224 N. W. 657. The accident did not happen in a business or residental section, as such sections are defined in the motor vehicle statute (section 1, tit. 1, Act No. 318, Public Acts 1927), and it was error to instruct the jury as to the maximum speed within such sections and in stating an issue thereunder, as follows: ‘It thus becomes a question for the jury to determine, first, whether or not the party was exceeding the maximum, and if he was not exceeding the maximum, then whether or not he was driving faster than was reasonable and proper under the circumstances at the particular place in question.’

The true issue under the pleadings and proofs was stated in the latter part of the quoted instruction. Under the evidence, the jury could not find that the place of the accident was in a business or residential section, and therefore could not consider the maximum speed in such sections as fixed by the statute and find defendant guilty of negligence if such speed was exceeded.

Counsel for plaintiff say: ‘The jury were fully warranted in finding defendant guilty of negligence arising from excessive speed without even considering the question of statutory speed limits applying in residence or business districts.’

But did the jury so find, or did the jury take the first issue submitted by the court, and, upon the testimony of the driver of defendant's car that she was driving 30 or 35 miles an hour, and was therefore exceeding the maximum...