Swift v. Kenbeek

• Decision Date: 22 June 1939
• Docket Number: No. 12.,12.
• Citation: 289 Mich. 391,286 N.W. 658
• Parties: SWIFT v. KENBEEK.
• Court: Michigan Supreme Court

289 Mich. 391

286 N.W. 658

SWIFT

v.KENBEEK.

No. 12.

Supreme Court of Michigan.

June 22, 1939.

Action by William E. Swift, as administrator of the estate of Don S. Swift, deceased, against Luke Kenbeek for death of the deceased resulting from a collision between defendant's automobile and a bicycle on which deceased was riding. From an adverse judgment, the defendant appeals.

Affirmed.

Appeal from Circuit Court, Kalamazoo County; Geo. V. Weimer, judge.

Argued before the Entire Bench.

Albert H. Adams, of Kalamazoo (Harry C. Howard, of Kalamazoo, of counsel) for appellant.

Fox, Fox & Fox, of Kalamazoo, for appellee.

NORTH, Justice.

The accident giving rise to this suit was a collision between defendant's automobile and a bicycle on which Don S. Swift was riding. The collision resulted in Swift's death. The administrator of his estate brought this suit. On trial by jury there was verdict and judgment for plaintiff. Defendant has appealed and asserts that he was entitled to a directed verdict on the ground that plaintiff's decedent was guilty of contributory negligence as a matter of law.

About 10:30, the night of February 18, 1937, Don Swift, then about 19 years of age, was riding his bicycle westerly down a hill, near the curb, on the north side of East Main street, in the city of Kalamazoo. Defendant's car, operated by his son with defendant's consent, was proceeding easterly up the hill on East Main street, and, as the automobile approached the point where Charlotte avenue turns off from East Main street in a northerly direction, the driver made a left turn, intending to go northerly on Charlotte avenue. East Main street is paved. Near the northerly curb line of East Main street, and near the center line of Charlotte avenue, the bicycle was struck by the left-hand front fender of defendant's car.

The negligence charged is that the driver of defendant's car was proceeding at an unreasonable rate of speed, without keeping a proper lookout for other traffic, and without regard to traffic approaching from the east on the northerly side of East Main street. On the other hand the alleged contributory negligence on the part of plaintiff's decedent is that he was riding at an excessive rate of speed, and that his bicycle was not equipped with a lighted lamp or bell. Appellant does not claim there was not sufficient testimony to sustain the jury's finding that defendant was negligent. Instead, appellant contends the trial court should have directed a verdict against plaintiff on the ground that his decedent was shown to have been guilty of contributory negligence as a matter of law, particularly in that he was riding his bicycle at an excessive and illegal rate of speed. By his brief appellant presents the following questions:

‘1. Did the fact that there were such eye-witnesses prevent the operation of the presumption of due care?

‘2. Did the testimony of defendant's witnesses in regard to the excessive and illegal speed of the bicycle prevent the operation of the presumption of due care?

‘3. Was proof of the physical facts pertaining to the accident sufficient evidence of contributory negligence to displace the presumption of due care and cast the burden on the plaintiff to show due care and freedom from contributory negligence?’

In so far as the foregoing questions pertain to any presumption that, because there were no eye-witnesses, plaintiff's decedent is presumed to have been free from contributory negligence, they are in no way pertinent to this review because the case was not submitted to the jury upon that theory. Instead the trial judge distinctly submitted to the jury as an issue of fact the question of whether plaintiff's decedent was or was not guilty of contributory negligence.

We quote briefly from the charge to the jury:

‘The plaintiff brings the action and the burden of proof rests upon him to satisfy you as jurors by a preponderance of the evidence, the greater weight of the evidence, first, that the defendant's son, John Kenbeek, was negligent in some respect as claimed; that the negligence was the proximate, the direct cause of the collision, and, third that Don Swift was not guilty of contributory negligence, that is, that he was not guilty of negligence on his part which contributed to cause the collision. * * *

‘If both parties to a transaction are...