Stehouwer v. Lewis

• Decision Date: 04 December 1929
• Docket Number: June Term.,No. 40,40
• Citation: 227 N.W. 759,249 Mich. 76
• Parties: STEHOUWER v. LEWIS et ux.
• Court: Michigan Supreme Court

249 Mich. 76

227 N.W. 759

STEHOUWER

v.LEWIS et ux.

No. 40, June Term.

Supreme Court of Michigan.

Dec. 4, 1929.

Error to Circuit Court, St. Joseph County; Clayton C. Johnson, Judge.

Action by Cornelius Stehouwer, as administrator of the estate of Teunis Stehouwer, deceased, against Max Lewis and wife. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before the Entire Bench.

J. Paul Wait, of Sturgis, for appellant.

Kim Sigler, of Hastings, for appellees.

BUTZEL, J.

Cornelius Stehouwer, as administrator of the estate of Teunis Stehouwer, deceased, brought this suit under the Survival Act (Comp. Laws 1915, § 12383 et seq.) against Mary Lewis, of Sturgis, Mich. Defendant Max Lewis, her husband, was the owner of a car which she was driving with his knowledge and consent. Under the law he would be, therefore, jointly liable with his wife in the event that she should be liable for negligence in causing the death of plaintiff's intestate.

Teunis was a lad of 10 years of age. About 4:30 on the afternoon of the 7th day of June, 1928, he was playing on the north side of Congress street in the city of Sturgis, Mich. The street at the point where the accident took place is paved with asphalt with a two-foot cement gutter along the side, and abuts a grass terrace. There is no sidewalk on the north side of the street. The block in which the accident took place adjoins the city limits.

Teunis and another lad were each playing with a ‘scooter,’ a mechanical toy device consisting of a board supported on a front and rear wheel, with a rod attached leading from the frontwheel to a steering bar or wheel. It is propelled by partially bearing the boy's weight thereon, he standing with one foot on the board and using the other foot to induce motion by periodically touching the ground or pavement and thereby impelling the scooter.

There is much conflict, as well as lack of testimony as to what actually took place. The boy was normal in every way. It was the claim of plaintiff that defendant Mary Lewis was driving the car at an unlawful, unreasonable, and excessive rate of speed, and that she did not blow the horn or give any other warning, although she had ample opportunity to see the boy; that she did not drive in a straight direction, but turned to the side of the road so that the car ran into the boy, throwing him into the air, so that he struck the side of the car. He suffered a fracture of his skull and died at the hospital 15 hours later.

Plaintiff produced a number of witnesses who supported these claims. Defendant, on the other hand, also produced a number of witnesses to show that she was driving carefully and slowly; that the boy was fixing his scooter in the gutter and suddenly and unexpectedly ran with his scooter into the side of the car with such force that the handle of the door was knocked off; that there was no negligence on her part. She produced witnesses, including the chief of police of Sturgis and a corporal of the state police, who examined the car immediately after the accident and who testified that there was no scratch of any kind on the front of the car. The car was produced at the trial. There was a scratch on the right bumper. The chief of police and the corporal of the state police, among others, swore that they had not seen the scratch immediately after the accident, although they examined the car very carefully. It was the claim of defendant that it could be seen that the scratch was a fresh one that had been made in some manner just prior to the trial of the case, approximately six months after the accident. The jury was able to examine the scratch on the bumper, as well as the broken handle and a mark on the side of the car, and a dent on the right rear fender.

The judge's charge to the jury was so long that it could easily lead into difficulties. No error is claimed on account of its length. The charge takes up 23 pages of the printed record, consisting of 194 pages. The jury brought in a verdict of no cause of action.

Plaintiff has appealed, and sets forth a number of assignments of error, many of which are inconsequential and almost frivolous, so that we need not pay any attention to them. Some are similar to those herein discussed by us. They could in no way have affected the jury's verdict. The assignments of error that may be of importance we shall discuss seriatim.

(a) Error is claimed in that, when plaintiff's witness, Jeannette Trobridge, a seventeen year old girl, testified as to the boy's condition immediately after the accident, and stated: ‘I did not see any of the brain until after we had put a cloth across the wound.’ The court asked the question: ‘You are not a physician?’ Witness' reply was: ‘Not much.’ No objection was made at the trial to the question and answer. Plaintiff claims that the question had a tendency to place the witness in a ridiculous light before the jury. What is blood and what is brain matter oozing through matted hair from a wound, as witness was testifying to, is more readily ascertainable by a physician than by a layman. Witness continued to give such intelligent answers to further questions that were put to her in regard to the same subject, that the jury must have been well impressed with her testimony. We do not believe there was any prejudicial error.

(b) Error is claimed, in that defendant's witness, Maude Lee Burg, was permitted to testify as to the rate of speed defendant's car was going at the time of the accident, because she was not an expert, and further, because she testified as to the rate it was going when it passed in front of her house, about 200 feet from the place of the accident. Witness never had driven an automobile but had ridden in one very often over since machines had been used. She stated that she frequently watched the speedometers, but admitted her inability to tell the exact mileage. She also described the distance the car was from the place of the accident when she saw it pass her home. She stated, however, that she could tell whether a car was driven slowly or fast, and that she could only estimate the speed. This court has frequently held that a witness need not qualify as an expert in order to testify to matters one learns through ordinary observation, such as the rate of speed at which a vehicle is going, provided a witness is fully interrogated as to the knowledge upon which his judgment is based, so that a jury can determine what weight should be given to his statements. Luttenton v. Detroit, etc., Railway Co., 209 Mich. 20, 28, 176 N. W. 558;Jones v. Taxicab & Transfer Co., 218 Mich. 673, 675, 188 N. W. 394.

(c) Defendant Max Lewis was asked by his counsel whether he carried any insurance on his car. Exception was taken to this question. Upon attention being called to the fact that, on the voir dire, members of the jury were asked by plai...