Shafkind v. Kroll
| Decision Date | 02 July 1962 |
| Docket Number | No. 15-16,15-16 |
| Citation | 367 Mich. 42,116 N.W.2d 58 |
| Parties | Albert SHAFKIND, a Minor, by his next friend, Nathan Shafkind, Plaintiff and Appellant, v. Freda KROLL, Defendant and Appellee. Nathan SHAFKIND, Plaintiff and Appellant, v. Freda KROLL, Defendant and Appellee. |
| Court | Michigan Supreme Court |
Albert Lopatin, Detroit, for plaintiffs and appellants.
Erickson, Dyll, Marentay & Slocum, Detroit, for defendant and appellee.
Before the Entire Bench.
BLACK, Justice (for affirmance).
The sole question is whether, in these consolidated jury-tried traffic accident cases the trial judge should have granted plaintiffs' timely request for instruction that the defendant motorist could, depending of course on jury view of the presented facts, be held liable for what we call subsequent or discovered negligence. See--in Prosser on Torts, 2d ed., § 52, p. 291--discussion of what, since Davies v. Mann, 10 M. & W. 546, 152 Eng.Rep. 588, 19 Eng.Rul.Cas. 190, has been known as the 'jackass doctrine.'* The jury returned a general verdict for defendant. Judgments for defendant thereupon entered. Plaintiffs appeal.
Plaintiff Albert Shafkind, then aged 10, received from his parents a used bicycle earlier in the day of presently scrutinized events. On account of maladjustment or want of repair the operating mechanism thereof was indirectly responsible for that which occurred at dusk or shortly after on December 21, 1957.
East-west Curtis and north-south Roselawn intersect, in Detroit, near the Bagley School in a so-called residential area. Roselawn, from curb to curb, is 28 feet wide south of Curtis and 30 feet wide north of Curtis. Curtis is 36 feet wide between curbs. The defendant motorist approached and entered the intersection from the east on the proper side of Curtis and, although her headlamps were lighted properly, failed to see Albert or Albert's bicycle until actual collision of her car with them. She was driving according to some of the witnesses at a rate of speed higher than the posted limit. It is manifest that the issue whether she was or was not causally negligent, as charged by plaintiffs, became one for jury determination.
Some time prior to defendant's approach Albert undertook to cross Curtis, from south to north on the westerly side of Roselawn. He was having trouble with the propulsion chain 'skipping' or 'slipping' and, apparently on that account, started to cross Curtis from the south curb by 'straddling' the bicycle or, as described by him, 'walking it.' Walking the bicycle in such manner he arrived at or just short of the center line of Curtis. There, his pant leg having become entangled either with the chain or the pedal, Albert stopped for some 30 to 40 seconds (or possibly a minute as one witness estimated) in order to free his leg and clothing preparatory to riding the bicycle.
While Albert was stopped 4 disinterested witnesses, approaching in an automobile from the west on Curtis, saw his trouble and brought their car to a stop, on the south side of Curtis, abreast and just short of Albert's position. Their car remained in such position until Albert was ready to proceed, at which time the car was started forward and to the east on Curtis. Albert thereupon undertook to continue north across the northerly portion of Curtis. He did not see defendant's car approaching at any time. As he started Albert was riding the bicycle. He continued riding it until impact. How far he progressed is disputed as well as uncertain. An officer estimated that the point of impact was 'approximately three or four feet to the north of the centerline.' Whatever the distance, Albert was struck while riding, as indicated, by the left front portion of defendant's westbound car. He was seriously injured.
The stated question must be...
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...had ceased to operate as the proximate cause of the accident.' 307 Mich. 420, 431, 12 N.W.2d 413, 416.) See Shafkind v. Kroll, 367 Mich. 42, 45, 116 N.W.2d 58 (1962); Churukian v. La Gest, 357 Mich. 173, 181, 97 N.W.2d 832 A somewhat similar limitation of plaintiff is found in several of th......
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