Rohrkemper v. Bodenmiller

• Decision Date: 02 February 1939
• Docket Number: No. 91,April Term, 1938.,91
• Citation: 283 N.W. 591,287 Mich. 311
• Parties: ROHRKEMPER v. BODENMILLER.
• Court: Michigan Supreme Court

287 Mich. 311

283 N.W. 591

ROHRKEMPER

v.BODENMILLER.

No. 91, April Term, 1938.

Supreme Court of Michigan.

Feb. 2, 1939.

Action by William C. Rohrkemper, administrator of the estate of Hazel Jackson, deceased, against Roy Bodenmiller for damages under the Survival Act. From a judgment for defendant, plaintiff appeals.

Affirmed by a divided court.

Appeal from Circuit Court, Monroe County; Clayton C. Golden, judge.

Argued before the Entire Bench.

M. Hubert O'Brien, of Detroit (Victor H. DeBaeke and Alfred Lindbloom, both of Detroit, of counsel), for appellant.

Golden, Fallon & Walters, of Monroe, for appellee.

SHARPE, Justice.

This is an action for damages under the survival act, 3 Comp.Laws 1929, § 14040, by William C. Rohrkemper, administrator of the estate of Hazel Jackson, deceased.

On the night of October 30, 1935, at about the hour of 1:40 a. m., deceased and her companion, Geraldine Bur, were returning from a party and were walking in a northerly direction along the westerly side of a highway known as M56 in Monroe county. Defendant was driving his Ford car in a northerly direction and while passing a car proceeding in the same direction struck deceased and injured her so that she died at 2:25 the same morning.

The pavement at the place of the accident is about 16 feet wide with a berm at the side of from four to six feet. It is level and consists of grass and gravel. The berm or shoulder was dry, but the night was misty. The car operated by Irvin Bodenmiller, a brother of defendant, was proceeding northerly on the extreme right side of the paved portion of the highway. The record shows that defendant, in attempting to pass the car operated by his brother, did not get beyond the paved portion of the highway; and that he first saw the girls after he had turned out to pass his brother's car, but did not see them until he was five feet from them. The brother's car was traveling about 18 miles an hour when defendant attempted to pass it. As soon as the accident happened, defendant applied his brakes and stopped his car in about 30 feet.

Defendant was using his ‘dimmer lights'. Lights from cars approaching from the rear could be seen a distance of approximately 500 feet. The cause was tried before the court and without a jury. During the trial the witness Geraldine Bur testified that immediately prior to the accident she and decedent were walking on the left side of the paved highway in single file with decedent in the rear. She also testified that they were walking on the paved portion of the highway; and that she told a Mrs. Masserant that they were walking side by side. At a later time during the trial she testified that she and decedent were walking on the berm or graveled surface adjacent to the highway.

The trial court made the following finding of facts:

‘Plaintiff argues in substance that because pedestrians are by law entitled to use any part of a highway, they may proceed under all circumstances without looking back or exercising such care as a reasonably prudent person would use for their own protection.

‘The Court is of the opinion that the credible testimony in this case fails to sustain the burden placed upon plaintiff to show lack of contributory negligence in plaintiff's decedent.

* * *

‘The Court believes, under all the circumstances, that the rule of falsus in uno, falsus in omnibus should be applied to the testimony of witness Bur, and that it should be disregarded in its entirety. Were the Court to do otherwise, he would still be obliged to find as a matter of fact that the credible testimony of said witness, together with the other testimony in the case, failed to sustain plaintiff's burden of proof on the question of absence of contributory negligence on the part of plaintiff's decedent.'

Plaintiff appeals and contends that the trial court erred in finding deceased guilty of contributory negligence as a matter of fact; and that the presumption that deceased exercised due care and was free from contributory negligence is applicable.

In this cause there were two eyewitnesses to the accident and consequently there is no presumption that plaintiff's decedent was in the exercise of due care. Collar v. Maycroft, 274 Mich. 376, 264 N.W. 407;Faustman v. Hewitt, 274 Mich. 458, 264 N.W. 863.

Plaintiff has the burden of proving that defendant was guilty of negligence and that plaintiff's decedent was free from contributory negligence. Fish v. Grand Trunk W. Ry., 275 Mich. 718, 269 N.W. 568.

In Janse v. Haywood, 270 Mich. 632, 259 N.W. 347, defendant, while attempting to pass an automobile ahead of him and, when abreast thereof, ran down and killed two of three girls walking side by side on the left side of the highway. The girls were facing approaching traffic and defendant came from the rear and, to pass the car ahead of him, turned into the other lane of traffic where the three girls were walking. Mr. Justice Wiest, speaking for the court, said [page 348]: ‘The girls had the right to walk in the highway facing approaching traffic, and whether, under the circumstances, plaintiff's decedent was guilty of want of reasonable care contributing toward the accident was also an issue of fact for the jury and not one of law for the court.'

As to the legal obligation of a pedestrian to look back to see whether there is danger of being struck from behind, in Pearce v. Rodell, 283 Mich. 19, 276 N.W. 883, this court said [page 889]: ‘There is no statute which says a person shall walk on any particular portion of a public highway which is open for the use of all the people without distinction for passage and repassage at their pleasure. A pedestrian may walk on any part of a public highway, and persons operating automobiles must use reasonable and ordinary care not to run down pedestrians upon such highways. A pedestrian has a right to rely upon the presumption the driver of an automobile will exercise due care and is not, as a matter of law, required to look back for approaching vehicles.'

Deceased was not negligent in walking on any portion of the highway up until she had notice that defendant's car was going to use that portion of the highway occupied by her and her girl friend.

‘Her duty to avoid the danger of injury did not arise until it became apparent or the circumstances were such that an ordinarily prudent person would have apprehended its existence. Corey v. Hartel, 216 Mich. 675, 185 N.W. 748.’ Lawrence v. Bartling & Dull Co., 255 Mich. 580, 238 N.W. 180.

As we review the record, we are constrained to hold that whether the lights and noise of defendant's car gave plaintiff's decedent warning that she was in a place of danger and whether this notice gave deceased sufficient time to get to a place of safety are questions upon which reasonable minds might differ. The determination of these facts was for the trial court who saw the witnesses and heard their testimony.

The trial court, sitting as a jury, found that ‘the credible testimony in this case fails to sustain the burden placed upon plaintiff to show lack of contributory negligence in plaintiff's decedent.’ It is well settled that the findings of fact of the trial judge are not disturbed unless against the clear preponderance of the evidence. Rollin v. Van Tine, 283 Mich. 208, 278 N.W. 48;Leonard v. Hey, 269 Mich. 491, 257 N.W. 733;Alexander v. Sanders, 279 Mich. 465, 272 N.W. 870.

The judgment of the trial court is affirmed. Defendant may recover costs.

WIEST, CHANDLER, and NORTH, JJ., concurred with SHARPE, J.

McALLISTER, Justice.

Hazel Jackson, a girl 16 years old, neglected by her parents, was a ward of the society of St. Vincent de Paul. She lived in Newport, Michigan, with a Mrs. Masserant, with whom the society made arrangements. On the night of October 30, 1935, she was returning home from a Halloween dancing party at St. Charles Church, at Oldport, Michigan. With her was another little girl about 14 years old, also a ward of the society of St. Vincent de Paul. Their way lay along highway M-56. The night was very foggy. As they proceeded home, walking on the left hand side of the highway, the little girl, Geraldine Bur, was walking in front of Hazel Jackson. They were talking and laughing about the party and having a good time.

Defendant was driving an automobile on M-56 in the same direction in which the two girls were proceeding. Defendant's brother was also driving another car ahead of defendant. Both cars were on the right hand side of the highway. When the defendant's brother was about to pass the girls, defendant decided that he would accelerate the speed of his car and pass his brother. In order to do this, he increased his speed and turned to the left to pass. As he was passing the other car, defendant crashed into Hazel Jackson, throwing her against the little girl who was walking with her. Defendant was driving with his lights dimmed. The fog was so thick that defendant did not see Hazel Jackson until he was within five feet of her-a fraction of a second before he struck her. He did not sound his horn or give any warning. Hazel died in Mercy Hospital in Monroe, Michigan, about an hour later. Her death was caused by a broken neck.

At the conclusion of all the proofs, counsel for defendant moved for a judgment of no cause of action. The court, thereupon, after filing findings of fact, entered judgment for defendant of no cause of action.

In his findings of fact, the court stated that, after the noon recess, Geraldine Bur was recalled as a witness, ‘and corrected her prior testimony so as to place the location of herself and plaintiff's decedent, at and prior to the time of the accident, on the said berm and not upon the left half of the highway’; that, therefore, applying the rule of falsus in uno, falsus in omnibus, such testimony should be disregarded in its entirety.

A review of the testimony does not show that the witness corrected her testimony or that she had previously testified falsely. She stated in her...