Sweet v. Ringwelski
| Decision Date | 09 January 1961 |
| Docket Number | No. 82,82 |
| Citation | 106 N.W.2d 742,362 Mich. 138 |
| Parties | , 90 A.L.R.2d 1434 Sandra SWEET, a minor, by her next friend, William Baldwin, Plaintiff and Appellant, v. Eugene RINGWELSKI, Crawford Door Sales Company, a Michigan corporation, and Emmett Thompson, jointly and severally, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Dann, Rosenbaum, Bloom & Kaufman, Detroit, for plaintiff and appellant.
Garan, Lucow & Miller, by Albert A. Miller, Detroit, for defendant and appellee, Eugene Ringwelski.
Erickson, Dyll, Marentay, Van Alsburg & Slocum, by Milo M. Rouse, Detroit, for defendants and appellees, Emmett Thompson and Crawford Door Sales Co.
Before the Entire Bench.
Plaintiff, a 10-year-old girl, walked east along the south side of an east and west street. She reached its intersection with a north and south street 50 feet wide. There were no traffic control signs or lights there. She stopped at the west curb, observed that no southbound traffic was approaching from her left and started to cross in the area marked off for crosswalk purposes. She reached the center of the north and south street, saw northbound vehicles approaching from her right and stopped to wait for them to pass. The first was a truck owned by defendant Crawford Door Sales Company and driven, in the course of its business, by its employee, defendant Thompson. It was proceeding in the northbound lane nearest the center. It stopped at the crosswalk and others stopped behind it. Defendant Thompson waved to plaintiff to cross in front of him. She did so. When she had passed the front of the truck and taken 2 or 3 steps beyond it she was struck by the automobile driven by defendant Ringwelski which was also travelling north in the lane immediately east of the truck which it was undertaking to pass. There was testimony that plaintiff looked to her right as she reached the east side of the truck but did not see the Ringwelski car coming, and also contrary testimony that she only looked straight ahead to the east.
After plaintiff's proofs had been introduced the court directed a verdict for defendant Thompson and his corporate employer. This was on the ground that no showing of negligence was made against them. The case proceeded as to defendant Ringwelski, the jury returning a verdict of no cause for action. Plaintiff's motion for new trial as to all defendants was denied. She appeals.
The action of defendant Thompson, claimed as negligence by plaintiff, was his waving her on without having ascertained that she could proceed across the rest of the intersection in safety, without danger from other approaching vehicles. In Hart v. Ludwig, 347 Mich. 559, 564, 79 N.W.2d 895, 898, this Court quoted from 38 Am.Jur., Negligence, § 17, p. 659, as follows:
"The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which duty an action lies."
Reference to that same American Jurisprudence section discloses the further statement that:
Defendants Thompson and Crawford Door Sales Company urge, in support of the directed verdict in their favor, that they were not shown to have been negligent, and, further, that if they were to be so held their negligence was not a proximate cause of plaintiff's injury, but, as a matter of law, was superseded by her intervening negligence in proceeding in front of the Ringwelski car, without making proper observation, after having passed in front of the truck.
In directing the verdict the trial court said, in effect, that plaintiff was seeking, in this case, to transpose an act of common courtesy into a tort; that Thompson's waving plaintiff ahead could only be interpreted fairly as meaning, 'Go ahead, my car is stopped and it will stay stopped until you pass in front of it,' and that it did not give her license to go ahead beyond the truck without further precautions on her part; that he was not thereby informing her that she would be safe from other traffic after passing his truck; that under her own testimony she had not, from that point on, relied on his gesture at all but, upon reaching the right front of his truck, had stopped, made further observation and concluded, in reliance on her own judgment, that she could go on in safety.
Defendants Thompson and Crawford Company, for support of their claim of no negligence on their part, rely on Devine v. Cook, 3 Utah 2d 134, 279 P.2d 1073. Involved in that case were two adult motorists. The one who was signalled to proceed had as good or better opportunity than the other to observe the approach of a third vehicle. Whatever validity there may have been, under the facts of that case, to the court's view that the defendant's waving motion should, at most, and as a matter of law, be held to amount only to a manifestation that the waver would wait for the other and not an assurance of safety with regard to other vehicles, such are not the facts here. Plaintiff was a 10-year-old girl. Her vision of the Ringwelski car may have been obstructed by the truck when Thompson waved to her. She testified that she proceeded to the point of impact because she had relied on what she considered directions from an adult and that she would not otherwise have gone on until the traffic had cleared. We do not believe that the court should have determined, as a matter of law, the intended meaning of Thompson's waving action and, more important, the thought that it might reasonably have been anticipated would be conveyed thereby to the 10-year-old girl. These, it seems to us, were questions of fact for the jury. The answers would be determinative of the question of Thompson's negligence.
With respect to the question of proximate cause and of plaintiff's alleged intervening negligence after passing in front of the truck, we think applicable from Parks v. Starks, 342 Mich. 443, 70 N.W.2d 805, 807, the following:
This appeared in Parks v. Starks, supra, as a quotation from Solomon v. Continental Baking Co., 172 Miss. 388, 393, 160 So. 732.
There is testimony that, after passing the truck, plaintiff proceeded on without looking right or left and, as above stated, she testified that in so proceeding she was relying on what she thought were the directions of an adult. This is contradicted by other testimony of plaintiff, but in considering a directed verdict against her we must view the testimony in the light most favorable to her and accept all favorable, reasonable inferences to be drawn therefrom. So viewed, we conclude that the question whether her proceeding, in the fashion she did, continued to be caused by Thompson's action, or whether that had been superseded by intervening negligent action of plaintiff, presented a question of fact for the jury. And so, also, for the question of whether Thompson should or might have foreseen such consequence, that was for the jury to say. If plaintiff's subsequent act was reasonably foreseeable, it would not, of course, constitute such intervening conduct as to terminate the effect and legal consequences of defendant's antecedent negligent act. Ferraro v. Taylor, 197 Minn. 5, 265 N.W. 829; Mitchell v. Lonergan, 285 Mass. 266, 189 N.E. 39; Coop v. Williamson, 6 Cir., 173 F.2d 313; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12; Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761.
The trial court, in directing the verdict, expressly declined to...
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