Zylstra v. Graham

• Decision Date: 01 October 1928
• Docket Number: No. 22,June Term.,22
• Citation: 244 Mich. 319,221 N.W. 318
• Parties: ZYLSTRA v. GRAHAM.
• Court: Michigan Supreme Court

244 Mich. 319

221 N.W. 318

ZYLSTRA

v.GRAHAM.

No. 22, June Term.

Supreme Court of Michigan.

Oct. 1, 1928.

Error to Circuit Court, Kent County; William B. Brown, Judge.

Suit by Z. Charles Zylstra, as administrator of the estate of Robert Kuzee, deceased, against James E. Graham. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.Dunham & Cholette, of Grand Rapids, for appellant.

Earl W. Dunn, of Grand Rapids (Rodgers & Rodgers, of Grand Rapids, of counsel), for appellee.

NORTH, J.

This suit was brought under the Survival Act (Comp. Laws 1915, § 12383 et seq.) to recover damages incident to the death of Robert Kuzee, alleged to have been caused by the negligent operation of an automobile driven by the defendant. The plaintiff had a verdict and judgment for $2,000, and the defendant reviews by writ of error.

This accident occurred on Turner street about 600 feet inside of the city limits of Grand Rapids. The defendant was returning from a trip to the country; and as he approached the point of accident he discovered that a large number of people who had been attending a school pageant held nearby were coming into and passing along the street. Many of them were school children. Some were going to their homes on foot, and others were making their way to automobiles which were parked on either side of the street, occupying all the available space. The street was graved, and the portion open for traffic between the rows of parked cars were from 24 to 30 feet in width. With full knowledge of the congested condition of the highway traffic, the defendant drove his Ford coupé along this street at a rate of speed which he fixes at 15 miles per hour. There is other testimony placing it at ‘around 25 miles an hour.’ Just at this time plaintiff's decedent attempted to cross from one side of the street to the other at a point near the middle of the block. When about halfway across, he was struck by the left front fender of defendant's machine, and suffered injuries from which he died a few hours later. The negligence charged is that the defendant did not have his automobile under proper control; that he was driving at an unlawful, unreasonable, and excessive rate of speed; and that he did not sound his horn or give any other signal of his approach. There is a rather unusual conflict in the testimony as to whether the boy was attempting to cross from the east to the west side of the street or in the opposite direction. All of the proof seems to indicate that he was running. The defendant claims that the deceased emerged suddenly from between two machines parked on the east side of the street; that he ran towards the opposite side, and that he was not to exceed 20 feet from the defendant when first seen by him; that the latter applied his brakes and turned his automobile towards the west side of the street; that he did not have time to sound his horn, and was unable to avoid striking deceased. The testimony varies as to the distance within which the defendant stopped his machine after striking the boy, it being somewhere from 18 to 39 feet. The alleged negligence is denied by the defendant, and it is claimed in his behalf that the accident was caused by the contributory negligence of plaintiff's decedent.

There are 35 assignments of error, but in appellant's brief these have been grouped and discussed under the following headings: (1) Error in refusal to direct a verdict for the defendant; (2) error in the conduct and attitude of the trial court; (3) error in the admission or rejection of testimony; (4) error in refusal to give the defendant's requests to charge; (5) error in the charge of the court as given; and (6) error in that the verdict was contrary to the clear weight of evidence.

1. The defendant claimed the right to a directed verdict both on the ground that there was no proof of negligence and that the proof established the contributory negligence of the deceased. It seems unnecessary to enlarge upon the statement of facts hereinbefore set forth as to the condition and use of the highway at the time and place of the accident, or to call attention again to the crowded condition of the thoroughfare as to both vehicles and people. It is quite evident that the trial court could not have held as a matter of law that it was not negligence on the part of the defendant to drive down this narrow roadway between the parked automobiles at a rate of 15 miles per hour, without giving any warning whatsoever of his approach within 200 feet from the place of accident. The presence of the people and the vehicles in large numbers upon the street was known to the defendant, and, as above indicated, there is testimony that his rate of speed was ‘around 25 miles an hour.’ The defendant explained his failure to give a signal of his approach by testifying that he was going at a rate of from 21 to 22 feet per second; and he further stated that after he saw the boy starting to run across the street, the defendant's machine went substantially 45 feet before he was able to bring it to a full stop. Clearly his negligence was a question of fact for the jury.

The deceased was six years and three days old on the date of the accident. The court submitted the question of his contributory negligence to the jury as a question of fact. The deceased did not regain consciousness after the accident, and the record is barren of satisfactory proof as to whether he looked for an approaching vehicle before crossing the street, or as to whether he saw the defendant's automobile. If this boy was old enough to justify the presumption that he gave the situation any consideration at all, it must be presumed, in the absence of testimony indicating otherwise, that he assumed any person operating a motor vehicle would regulate the speed and control of his machine as the surrounding circumstances reasonably required. The boy had attended public school for a year, and during that period from time to time he had been cautioned by his mother as to the danger of being injured by automobiles when he was crossing the streets on his way to and from school.

‘Although, under the general rule, children under the age of seven years are presumed to be incapable of contributory negligence, due to assumed lack of experience, discretion and capacity to recognize and understand danger, age alone is not the conclusive test, but experience and capacity are also to be considered.’ (Syllabus) Thornton v. Ionia Free Fair Asso., 229 Mich. 1, 200 N. W. 958.

In view of the tender years of this boy, the trial judge was wholly justified under the facts of this case in refusing to direct a verdict in favor of the defendant on the ground that the deceased was guilty of contributory negligence.

II. Conduct and Attitude of Circuit Judge.-We have given careful consideration to the objections made to the attitude and remarks...