Walker v. Rebeuhr

Decision Date25 June 1931
Docket NumberNo. 111.,111.
Citation237 N.W. 389,255 Mich. 204
PartiesWALKER v. REBEUHR et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

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

Action by John W. Walker against Georgia Rebeuhr and another. Judgment for plaintiff, and defendants appeal.

Reversed for new trial.

Argued before the Entire Bench, except NORTH, J.Hamilton, Cleary & Storkan, of Battle Creek, for appellants.

Maxwell B. Allen and Howard W. Cavanagh, both of Battle Creek, for appellee.

CLARK, J.

Plaintiff claims damages for personal injuries by being struck by an automobile of defendant, Georgia Rebeuhr, driven by her son, the other defendant. Plaintiff had verdict and judgment. Defendants have appealed.

The accident happened in the evening of May 21, 1929, on East Michigan avenue in Battle Creek. The automobile passed a street car. Whether the street car had stopped or was moving is a disputed question of fact. The driver of the automobile, as he was passing, or just as he had passed the street car, at a reasonable and lawful speed, according to his testimony, observed plaintiff a short distance in front of the street car, crossing the street and coming nearly into the rather narrow path of the automobile. The driver in the instant, a second he says, of time, applied brakes and swerved the automobile to the left in an effort to avoid plaintiff. The right front bumper struck plaintiff.

An item of negligence averred against defendants is driving on the wrong side of the street.

The driver was in a sudden emergency, whether due to his own fault or not cannot be said as a matter of law. Plaintiff contends that if there was an emergency it was produced by defendants in driving the automobile past a standing street car in violation of law. On defendants' theory and evidence, the emergency was not brought about by any negligence or wrong on their part.

The court instructed the jury: ‘Therefore, in this case, if you find that defendant was confronted by a sudden and unexpected emergency because of the wrongful act of the plaintiff, then I charge you that the defendant cannot be held to the same deliberate action and conduct which he would be required to exercise if it were not for such sudden emergency, and if he had a longer time in which to use his judgment and discretion.'

In this case, if plaintiff was guilty of any wrongful act he was guilty of contributory negligence, assuming defendants' negligence, and he, therefore, could not recover,...

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22 cases
  • Cousino v. Briskey, s. 62
    • United States
    • Michigan Supreme Court
    • April 1, 1961
    ...incident thereto.' (Quotation from Myler v. Bentley, 226 Mich. 384, 386, 197 N.W. 521, followed in presently mentioned Walker v. Rebeuhr, 255 Mich. 204, 206, 237 N.W. 389). Did I say 'mature' rule? See the unanimous opinion of Noyce v. Ross, 360 Mich. 668, 104 N.W.2d 736 (per Kavanagh, J.),......
  • Hill v. Walters
    • United States
    • Wyoming Supreme Court
    • March 12, 1940
    ... ... of the negligence of defendant. The law under such conditions ... is well stated in Walker v. Rebeuhr (Mich.) 237 N.W ... 389; 45 C. J. 962; 4 Blashfield 481. The emergency rule ... cannot be applied where the situation of peril arises ... ...
  • Socony Vacuum Oil Co. v. Marvin
    • United States
    • Michigan Supreme Court
    • March 4, 1946
    ...he finds himself is brough about by his own negligence.’ The rule so stated was quoted, with approval, by this court in Walker v. Rebeuhr, 255 Mich 204, 237 N.W. 389. In view of the conflicting testimony as to how and why the accident happened, the jury should have been told that plaintiff ......
  • VanderLaan v. Miedema
    • United States
    • Court of Appeal of Michigan — District of US
    • February 25, 1970
    ...the circumstances of the accident, whatever they were.' Expression of the doctrine in its classic form is found in Walker v. Rebeuhr (1931) 255 Mich. 204, 206, 237 N.W. 389 and Paton v. Stealy (1935), 272 Mich. 57, 62, 261 N.W. 131, 'One who suddenly finds himself in a place of danger, and ......
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