Dedo v. Skinner , 296 Mich. 299 ( 1941 )

On trial by jury Elizabeth Dedo, a minor, in a suit brought by her next friend, had verdict and judgment for injuries sustained as the result of being struck by a Buick sedan owned and driven by defendant, Christine L. Skinner. Defendant has appealed.

We refer herein to the minor as plaintiff. The accident occurred shortly before noon of a pleasant day, August 15, 1938, when plaintiff was attempting to go in an easterly direction across the 39-foot pavement of Lowell street in Ironwood, Michigan. She was seriously injured when struck by defendant's automobile going in a southerly direction on its righthand side of the street. The location is in the city's business section. Plaintiff, who was then a week under seven years of age, had left the sidewalk on the westerly side of the street somewhere near the center of the block, not at a crosswalk. As she reached a point somewhat easterly of the line of cars parked on the west side of the street, the accident happened.

Defendant claims plaintiff ran out from between two parked cars and into the front portion or in front of defendant's car which defendant asserts was going at 15 miles per hour or less. Defendant contends plaintiff's own fault caused the accident, and that defendant herself was free from negligent conduct. On the other hand, plaintiff says she came out of an alley which extends west from Lowell street, and when on the sidewalk she looked for automobiles coming either from the north or from the south, and did not see any. She charges defendant was negligent in that she was driving her automobile at a dangerous, unreasonable, and unlawful rate of speed, that she failed to keep the automobile under control, failed to maintain a proper lookout, and failed to give warning of the approach of the automobile.

The primary controversy on this appeal is presented by appellant's contention that as a matter of law the trial court should have held defendant was free from actionable negligence, and also that plaintiff was guilty of contributory negligence. These questions were raised by appropriate motions in the trial court. In reviewing these issues we must construe the record in the light most favorable to plaintiff.

A careful review of this record brings the conclusion it cannot be said as a matter of law that defendant was free from negligence. There was testimony for the jury to the effect that defendant was driving her car in this business section of Ironwood at the rate of 30 miles an hour. This was in violation of statutory provisions^* and was negligence per se. And, further, at the time and place of the accident in the comparatively narrow business street, cars were parked all along the curb to defendant's right. Also, under defendant's own testimony she did not see plaintiff at all until after the accident. If consideration is to be given to the testimony of plaintiff and one of her witnesses, as must be done, that she approached the street at the opening of the alley, facts appear which necessitate submitting to the jury the question whether the defendant was guilty of negligence in failing to keep a proper lookout.

Likewise our review of the record brings the conclusion that the testimony presented an issue of fact as to whether plaintiff was guilty of contributory negligence. Both she and the little girl who was accompanying her testified that before going upon the street plaintiff made an observation from the sidewalk as to approaching vehicles, and plaintiff testified she saw none. In considering her conduct in thereafter attempting to cross the pavement it must be borne in mind that plaintiff was a child of tender years.

"As to whether an infant exercised due care to avoid danger is not to be measured by the rigid rule applicable to adults, but the standard to be applied to the conduct of a child is whether it exercised such care as is ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances."Bridges v. Dahl (C.C.A.), 108 Fed. (2d) 228.

"When contributory negligence is sought to be attributed to a child, the child can only be held to that degree of care which may reasonably be expected from one under the same conditions, of the same age, sex, intelligence, and judgment. * * * The general rule imputes lack of capacity up to the age of 7 years." Clemens v. City of Sault Ste. Marie. 289 Mich. 254.

We are mindful defendant urges that the testimony of a greater number of witnesses tends to establish plaintiff's contributory negligence than to the contrary, and also that plaintiff's testimony on cross-examination pertaining to this issue contradicted that given by her on direct examination. But notwithstanding these circumstances, in view of the record as a whole we do not find plaintiff was guilty of contributory negligence as a matter of law.

Appellant also urges that the judgment should be vacated on the ground that the verdict of the jury was "against the clear weight and preponderance of the evidence." Counsel for the respective parties have briefed this phase of the appeal in a thorough and helpful manner; but in the main the contention of each finally resolves itself into stressing the greater plausibility of the witnesses who testified favorably to his client and in pointing out inconsistencies or lack of persuasiveness of contrary testimony. It is not surprising that there should be quite decided conflict in the testimony of disinterested eyewitnesses to an accident which happened so unexpectedly and suddenly as the one which has given rise to this suit. Especially is this true when witnesses were not called upon until some time thereafter to give their recollection of details to which there was no occasion at the time for giving special attention. In cases of that character there is always present the possibility of a witness making an honest mistake. But this record forces the conclusion that there is competent and persuasive testimony tending to sustain the contention of each of these litigants as to the manner in which and the exact place where the accident happened. If the jury believed the testimony favorable to plaintiff as against that which tended to discredit plaintiff's claim, the record is sufficient to justify the verdict rendered. The testimony which defendant stresses in her behalf, as against that favorable to plaintiff, is not of that degree of persuasiveness which would justify a holding in this Court that the jury's verdict was contrary to the great weight and preponderance of the evidence.

Consideration has been given to other questions raised by appellant, among them that the verdict was the result of passion and prejudice engendered by plaintiff's counsel, that it was grossly excessive and as to damages awarded was contrary to the trial court's instructions; and that because of plaintiff's failure to comply unconditionally with the trial court's order for remittitur in the amount of $643, a new trial should have been had. After careful review of all of the questions presented on this appeal we conclude that they do not disclose sufficient ground for reversal.

Judgment in the circuit court in the amount of $3,357, as reduced by plaintiff's remittitur, with taxable costs, is affirmed. Appellee will have costs of this Court.

SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, McALLISTER, WIEST, and BUTZEL, JJ., concurred.

^* See 1 Comp. Laws 1929, § 4697, as amended by Act No. 119, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 4697; Stat. Ann. § 9.1565), — REPORTER.