Zebell v. Buck
| Decision Date | 16 May 1933 |
| Docket Number | No. 26.,26. |
| Citation | 248 N.W. 559,263 Mich. 93 |
| Parties | ZEBELL v. BUCK et ux. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Berrien County; Charles E. White, Judge.
Suit by Reuben B. Zebell, administrator of the estate of Loraine Zebell, deceased, against Paul Buck and wife. From a judgment for defendants, plaintiff appeals.
Affirmed.
Argued before the Entire Bench.
Charles W. Gore, of Benton Harbor, for appellant.
Gore & Harvey, of Benton Harbor, for appellees.
Napier road, running in an easterly and westerly direction out of Benton Harbor, Mich., is a macadamized highway 20 feet in width, and flanked by shoulders. On the afternoon of November 3, 1930, Mrs. Burr, a teacher at a country school, was driving in a westerly direction along Napier road, accompanied by three of her pupils, one of whom was her niece, Loraine Zebell, at the time seven years and two months old. Mrs. Burr stopped her car on the north side of the road not far from the Zebell home, which stood on the opposite side of the highway. The car came to a standstill with its right wheels off the pavement. The car had only one door on the right side, and it opened towards the front of the car, with the result that, to one approaching from the opposite direction, the view of any one standing behind the open door was at least partially obstructed. Loraine stepped from the car and stood near the running board from a minute to a minute and a half as she discussed school work with Mrs. Burr. Then Loraine went around to the rear of the car and started to run across the road. At that moment Mrs. Burr looked up and saw a car approaching from the west. She called a warning to Loraine, but it was too late. The on-coming car, driven by Mrs. Paul Buck, struck the child with such force that she was instantly killed. Reuben H. Zebell, as administrator, brought suit against Paul Buck and wife, claiming damages under the Death Act (Comp. Laws 1929, §§ 14061, 14062).
Besides Mrs. Burr and the two children in the car, plaintiff produced one witness who saw the accident from a field nearby. Although Mrs. Burr stated that the Buck car came ‘like a flash,’ this witness testified that the car was going at a speed from 30 to 35 miles an hour, and that it swerved to the south side of the road and eventually came to a stop in the ditch after striking the child. This would indicate that an effort was made to avoid hitting the girl. The body of the child was found some 90 feet from the scene of the accident, but how far it was dragged is not shown.
The declaration stated that Loraine was intelligent, mentally alert, and physically sound. The testimony not only bore out this statement, but further showed that she was an unusually bright child, and that she was doing both second and third grade work at school. Plaintiff testified that she had been cautioned repeatedly by her mother about the dangers of traffic, and that she seemed to understand her mother's instructions with regard to the care she was to exercise. She had been permitted to go to school unaccompanied the previous year, and, as her teacher stated, ordinarily she would stop and look for on-coming cars before she crossed the road. On motion, the trial judge directed a verdict for the defendants on the ground that there was no negligence shown on their part, and that there was contributory negligence on the part of plaintiff's intestate. There is no material dispute about the facts.
We are full accord with the trial judge's views. No negligence on the part of defendant having been shown, it was proper for the trial judge to direct a verdict on that account. Door v. Valley Lumber Co., 254 Mich. 694, 236 N. W. 910;Braxton v. Gazdecki, 255 Mich. 518, 238 N. W. 194.
The trial judge was also correct in finding plainti...
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Johannes v. Rooks
...ran onto the track without looking or listening, was held to be guilty of contributory negligence as a matter of law. In Zebell v. Buck, 263 Mich. 93, 248 N.W. 559, a girl, seven years and two months old, had been cautioned repeatedly by her mother about the dangers of traffic and seemed to......
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Dulemba v. Tribble, 80.
...does not serve, under such circumstances, to make the question of his contributory negligence one of fact for the jury. Zebell v. Buck, 263 Mich. 93, 248 N.W. 559. For cases in which children considerably younger than plaintiff were held guilty of contributory negligence as a matter of law ......
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Bird v. Meade, 56.
...negligence upon the part of plaintiff's decedent. There was no question of fact to be submitted to the jury. See Zebell v. Buck, 263 Mich. 93, 248 N.W. 559, and cases cited therein. The judgment of the lower court is affirmed. Defendant may recover costs.FEAD, C. J., and NORTH, WIEST, BUTZE......