Wilkins v. Bradford

• Citation: 225 N.W. 609,247 Mich. 157
• Decision Date: 03 June 1929
• Docket Number: No. 12.,12.
• Parties: WILKINS v. BRADFORD.
• Court: Michigan Supreme Court

247 Mich. 157

225 N.W. 609

WILKINS

v.BRADFORD.

No. 12.

Supreme Court of Michigan.

June 3, 1929.

Error to Circuit Court, Berrien County; Chas. E. White, Judge.

Action by Kenneth D. Wilkins, special administrator of the estate of Joseph Balun, deceased, against Clarence A. Bradford. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.John J. Sterling, of Benton Harbor, for appellant.

Stratton & Evans, of St. Joseph (Kenneth D. Wilkins, of St. Joseph, of counsel), for appellee.

FEAD, J.

Some time after 7 o'clock in the evening of August 17, 1927, an overcast, cloudy night, so dark that drivers had their headlights on, Joseph Balun, eight years old, was sent by his parents to carry a two-quart paid of milk to a neighbor. He was next discovered lying on the east side of public highway U. S. 12, which runs north and south. He was dead, with his skull fractured and his neck broken, either of which injuries would have caused instant death. The milk pail was found 75 or more feet south, with a deep dent in it and the handle bent. There were no eyewitnesses to the accident.

Defendant drove north on the road about the time of the injury to decedent. A mile north of where Joseph was found, defendant came upon a wagon going north, attempted to turn to the left, saw another car approaching, and to avoid an accident turned to the right, lightly struck the wagon, ran across a small ditch into a field, attempted to drive out, but could not, and remained there for some time, his car headed south. Immediately before defendant struck the wagon, a car passed him, going south, and the occupants testified they met no other vehicle before they reached the boy. As they came to where Joseph was lying, another car drove up. Some of the occupants of the two cars summoned a deputy sheriff, physician, and undertaker. After examining the boy, the deputy sheriff and physician went to where defendant's car was stalled in the field. They testified they found milk on the radiator and windshield of the car, smelled warm milk, found hair on the car, which corresponded in color and taxture with Joseph's, and discovered a dent in the radiator about the size of the boy's head, with hair in it similar to his. Others examined the car in the filed and at the jail and gave corroborating testimony. There was also evidence that defendant was excited; said he had been going to Chicago, which was south, and that, if he hit the boy, he did not know it. This evidence, while disputed and explained in many respects, required the court to submit to the jury the question of whether defendant's car struck decedent.

The claims of negligence submitted to the jury were: (a) That defendant was driving at an unreasonable rate of speed; (b) that he did not have the car under reasonable control;...