Tyler v. Weed

• Decision Date: 30 June 1938
• Docket Number: No. 54.,54.
• Citation: 285 Mich. 460,280 N.W. 827
• Parties: TYLER v. WEED et al.
• Court: Michigan Supreme Court

285 Mich. 460

280 N.W. 827

TYLER

v.WEED et al.

No. 54.

Supreme Court of Michigan.

June 30, 1938.

Action by Edmund Dean Tyler, by his next friend, Winifred Tyler, against Mattie N. Weed and Burt T. Weed for injuries sustained when plaintiff was struck by an automobile which was driven by the first-named defendant and which was owned by defendants jointly. From a judgment for defendants, plaintiff appeals.

Reversed.

POTTER, J., dissenting.

McALLISTER and BUSHNELL, JJ., dissenting in part.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench, except NORTH, J.

Russell W. Conroy, of Battle Creek (Allen & North, of Battle Creek, of counsel), for appellant.

Joseph W. McAuliffe, of Battle Creek, for appellees.

McALLISTER, Justice.

This is an action for damages for negligence, brought by an infant suitor by his next friend. On September 26, 1935, just before noon, plaintiff, a child six years and eight months old, was returning from school to his home in Battle Creek. He was walking in a westerly direction on the north side of Webber Street, which intersects Meachem Avenue, a north and south steet. When plaintiff came to the intersection he stepped from the curb and, it is claimed, looked north, took a step or two and then looked south, and started running diagonally Meachem Avenue in a northwesterly direction.

Defendant, a woman 65 years old, was driving an automobile on Meachem Avenue proceeding in a northerly direction. She testified that when she reached the intersection she glanced to the sidewalk on the right, but saw no one on the corner; but she states that when she arrived in the middle of the intersection she first saw plaintiff two feet from the curb on the right. From the time she first saw plaintiff until she applied her brakes, her car travelled approximately 25 feet. The plaintiff was struck by the left fender of defendant's car after he had run in a northeasterly direction a distance of 51 feet, and after he had passed the center line of the street he was trying to cross. As a result of the accident, plaintiff suffered severe and permanent injuries, including fractures and the loss of an eye.

The case was tried before a jury and resulted in a verdict of no cause of action. On appeal the plaintiff claims error on the part of the trial court in submitting to the jury the question of his contributory negligence, because he was under seven years of age, and also asks reversal on the court's instructions to the jury relative to acts done in emergency and the standard of care required of the defendant.

Plaintiff's right to claim that he was incapable of negligence as a matter of law, is now challenged by counsel for defendant, on the ground that it is made for the first time on appeal; and it is submitted that such claim, not raised in the court below, comes before us too late to save the question for review. Plaintiff's counsel did not request instructions to the jury in this regard, and the question of plaintiff's incapacity for negligence as a matter of law was indirectly, but not specifically, brought to the attention of the trial court on the motion for a new trial, as hereinafter appears.

It is true that formerly it was the duty of counsel to call such error to the attention of the trial court. But such practice was changed by statute. Compiled Laws Michingan 1929, Sec. 14311.

In Totten v. Totten, 172 Mich. 565, 138 N.W. 257, this court said in considering a similar objection (page 262): ‘If manifestly an inadvertence as indicated to those listening to the charge, it would seem to be the duty of plaintiff's counsel, rather than defendant's to call the attention of the court to it. Under the practice which formerly prevailed, it would have been the duty of counsel for defendant to then take exceptions, thereby calling the attention of the court to the matter and thus give opportunity to make correction; but latterly, for reasons which we do not seek to fathom, the Legislature provided that it is not necessary in such cases to except to the charge given to the jury, but the party deeming himself aggrieved by any portion of the charge may remain silent, and subsequently, when removing the case to this court, for review, assign his errors upon the charge.’

Error may now be assigned upon the charge without bringing the matter to the attention of the trial judge. Goodman v. Fangert, 204 Mich. 66, 170 N.W. 29. The right to review an assignment of error is not lost because of failure to request that the subject be covered in the charge. Morain v. Tesch, 214 Mich. 699, 183 N.W. 899.

Defendant further contends that such claim of error is not included in the statement of reasons and grounds for appeal and therefore is not before this court for consideration. Plaintiff's fourth assignment of error states:

‘The Court erred in overruling plaintiff's motion for a new trial for the reason assigned in the second paragraph of said motion in charging as follows:

“However, a person violating any of said provisions is not liable to respond in damages unless her negligence in that regard was the proximate cause of the accident and there was no contributory negligence on the part of the party asking to recover. If you find the plaintiff was negligent in any manner and his negligence contributed to the accident, then plaintiff could not recover.”

While such assignment did not explicitly claim that the trial court erred in not holding that plaintiff was presumed to be free from negligence as a matter of law, it nevertheless set forth that the court erred in charging the jury that plaintiff could not recover if he were negligent in any manner, if such negligence contributed to the accident.

We believe that the ground upon which reversal is sought, is fairly indicated and sufficiently complies with the rule, that errors, which are assigned, must be fairly indicated if not precisely stated. Genrow v. Modern Woodmen of America, 151 Mich. 250, 114 N.W. 1009. So presented, it raises the question of whether infant plaintiff in this case, being under the age of seven years, is conclusively presumed to be incapable of negligence; and whether the court erred in submitting such claimed negligence of the infant plaintiff as a question of fact to be determined by the jury.

On this proposition there is a conflict of authorities between those that hold that the question of an infant's negligence is always to be determined as a question of fact regardless of age, and those that follow the so-called common law rule that an infant under the age of seven years is conclusively presumed to be incapable of negligence.

This proposition, in its various phases, has been before our Court on numerous occasions.

In Thornton v. Ionia Free Fair Association, 229 Mich. 1, 200 N.W. 958, a case involving the alleged contributory negligence of a boy 14 years old, the Court said (page 961): ‘Plaintiff had passed the years of tender childhood which is protected from contributory negligence by the presumption thrown around its assumed lack of experience, discretion, and capacity to recognize and understand danger. The general rule imputes that lack of capacity up to the age of 7 years, and some courts have applied it as a prima facie presumption until the age of 14 is reached, putting the burden of proof on those claiming contributory negligence.’

This would seem to affirm the common law rule in our state. However, the Court further said: ‘But age alone is not the conclusive test. Experience and capacity are also to be considered. As was said in Trudell v. Railway Co., 126 Mich. 73, 85 N.W. 250,53 L.R.A. 271, where the injured child was 7 years and 4 months old: ‘Age is not the true test in such cases. It is the intelligence of the boy, not his age, that must control.’ By the tests of capacity and experience children younger than 7 years have been held guilty of contributory negligence as a matter of law under the undisputed facts.'

The Court in this latter statement, which was obviously dicta, referred to Hayes v. Norcross, 162 Mass. 546, 39 N.E. 282. Such rule has never heretofore been followed in Michigan; and in the case then under consideration by our court, the child was 14 years old and the principle as applied to a child under 7 years of age was not involved.

In Barger v. Bissell, 188 Mich. 366, 154 N.W. 107, a child six years, ten months and ten days of age was injured in an automobile accident and received a judgment against the defendant driver, which came before this court for review. The defendant asked reversal on the ground that there was no evidence showing, or having any tendency to show, negligence on the part of the defendant and that the verdict was contrary to the great weight of the evidence. The court reversed the judgment on the ground that there was no showing of negligence on the part of the defendant. But in passing on the case, the court said (page 108): ‘It is manifest that she [the infant plaintiff] exercised no care at all, and, if an adult, she would clearly be barred from recovery by her own carelessness and negligence; but with a child of her age the question of contributory negligence precluding recovery, in case the defendant is shown guilty of negligence, is usually an issue of fact for the jury. In passing upon the legal questions raised here, the materiality of her conduct in thus suddenly coming upon the street close in front of a passing automobile, in the middle of a block, is its bearing upon the question of defendant's negligence. * * * Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, gence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.’

The question again came before the court in ...