Hinchey v. J. P. Burroughs Son , 240 Mich. 273 ( 1927 )

On a dark night in December, 1924, between the hours of 6 and 7 o'clock, plaintiff's decedent received injuries from which he later died, by being struck with a Dodge delivery truck, driven by defendant's employee, on Beach street in the city of Flint. Beach is known as a "through street," upon which at this time there was a great deal of traffic, due in part to Saginaw street near by being then out of repair. The only witnesses to the accident were the driver of the truck, and a 13-year old boy who was riding with him. They were called by the plaintiff and testified in effect that the car was being driven at the rate of about 17 miles per hour, with dimmers which shone about 12 feet ahead, although the driver, when asked if he could have seen deceased if he had stepped within the radius, answered that he did not believe he could, because the lights didn't make any reflection on the pavement at all. The driver also testified that he struck deceased with the hub of the left front wheel; that the street was very narrow; that he did not see deceased until he was within a foot of the car directly in front of it; that he turned his car to the right in an endeavor to escape hitting him, but that the left corner of the truck struck him. From the testimony of these witnesses it also appears that the plaintiff was attempting to cross the street in the middle of the block, carrying a pail of water towards his home. At the close of plaintiff's case, the court directed a verdict for the defendant because the proofs undisputedly showed the deceased to have been guilty of contributory negligence. Plaintiff brings error.

We are convinced the trial court took the right view of the case. Jones v. Armstrong, 231 Mich. 637; Steele v. Hamilton,218 Mich. 522; Hill v. Lappley, 199 Mich. 369; Deal v. Snyder, 203 Mich. 273; Fulton v. Mohr, 200 Mich. 538; Halzle v. Hargreaves, 233 Mich. 234.

This is not of the class of cases where the injured person looked before entering upon the street and continued his watchfulness after entering the traffic, but failed to see an approaching automobile because of its high rate of speed or from some other good cause. Here the truck was not speeding, and its lights, although their rays projected but an inconsiderable space ahead, were plainly visible to deceased a long distance away, and had he looked in that direction at all he must have seen them. Failing to look, as we must conclude he did, in the absence of any other explanation as to how he came to walk out into the street directly in the path of the truck, it cannot be said that he exercised ordinary care or caution in attempting to cross. It is certain that one about to cross a public street must exercise ordinary and reasonable caution and care for his own safety, dependent entirely upon the conditions and surroundings that obtain at the place of crossing. He may not step upon a well traveled pavement without looking, nor, having looked, may he proceed without further heed to his surroundings, when, had he looked again, he would have seen and been able to avoid his danger. Any presumption of want of negligence on the part of deceased in the instant case is overcome by the undisputed facts as to how the accident happened. He was crossing a heavily traveled thoroughfare in the middle of a block on a very dark night. He lived upon the street and knew that it was a busy one. A much greater degree of care was required in crossing as and where he did than at an intersection of streets where drivers are on the look out for pedestrians to cross. The center of a block is never a proper place to cross a busy street. Particularly is this true at night where observation of objects is difficult. The deceased having no right to attempt a crossing where he did, there was no duty on the part of the driver to "exercise special care in anticipation both of crossing pedestrians and vehicles" as was held by this court in Patterson v. Wagner, 204 Mich. 593. Likewise in the recent case of Petersen v. Lundin, 236 Mich. 590, the accident happened at a regular street crossing, and that this fact was important in the holding is evidenced by the language of the court in considering the question of defendant's negligence, where it is said:

"Considering the darkness, mist and fog, the limited vision afforded through the windshield, the speed defendant was driving, and the fact the accident occurred on a cross-walk, we think there was evidence," etc.

In the instant case decedent could have protected himself by the use of ordinary care. He failed to exercise it. His negligence clearly contributed to the injury, and recovery cannot be had.

The judgment should be affirmed, with costs to defendant.

FELLOWS and CLARK, JJ., concurred with SNOW, J.