McGuire v. Reenders Dairy Co.

370 Mich. 642 (1963)

122 N.W.2d 648

McGUIRE v. REENDERS DAIRY COMPANY.

Calendar Nos. 5, 6, Docket Nos. 49,726, 49,727.

Supreme Court of Michigan.

Decided July 17, 1963.

James P. Mattimoe and P. Charles Peters (Henry J. Freud, of counsel), for plaintiffs.

Ford, Kriekard & Brown (Gordon H. Kriekard, of counsel), for defendant.

DETHMERS, J.

Defendant was owner of a milk truck being driven by its employee within the ambit of his employment. It struck and injured 2-1/2-year-old *644 plaintiff, Jeanne McGuire. The 2 suits, here consolidated, are, respectively, for her damages and those of her father, plaintiff Donald McGuire, resulting from her injuries. From judgments for defendant, entered on the jury's verdict of no cause for action, plaintiffs appeal.

The accident occurred on a north and south street, paved with tarvia 18 feet wide, but without curbs, gutters or sidewalks. The area is residential and the lawns slope from the houses to the edge of the tarvia. The terrain is flat and affords good opportunity for observation by motorists. Defendant's driver was going north at a speed, as he said, of from 10 to 20 miles per hour. There also was testimony from others that his speed was from 5 to 10 miles per hour, very slow. He testified that he had seen a group of children cross the street about 300 feet ahead of him; that as he drove along he looked out for house numbers. He told an officer that he saw a "friend" to his left and waved to and greeted him and that the friend hollered "stop", and he stopped and did not know that he had hit the child. The middle of the front bumper struck the child who was then at the middle of the street. Three disinterested eyewitnesses to the accident testified that the child was crossing the street from east to west and that there were no vehicles parked on the east side of the street but there were some on the west side. At trial the driver testified that, just before striking her, he had seen the top 2 inches of the child's head about 3 feet ahead of the truck, that he could see the right part of her "forehead facing the east, more or less", her right eye toward the truck, and so he concluded she had come from behind a parked vehicle on the west side of the street. The child's left leg was fractured.

Plaintiffs' declarations alleged the driver's negligence to consist of failure to drive with due caution *645 or at a prudent rate of speed and failure to make proper observation. No charge was made of driving on the wrong side of the pavement. After considerable proofs were in, indicating that the vehicle had been driven other than in its own right-hand lane, plaintiffs sought to amend their declarations accordingly. This was first permitted by the court, but, later, the court took the opposite view and denied the motion to so amend. Plaintiffs' proffer of testimony as to location of the truck on the pavement just before the accident was refused on the ground that this was not within the scope of the pleadings. The court instructed the jury that, on that same ground, it might not base a verdict for plaintiffs on location of the truck when the child was struck. With respect to this instruction, rejection of testimony, and denial of amendment to the declaration as to where the truck was being driven, plaintiffs assign error. Without holding that, under all of the facts and circumstances of this case and the lateness of the motion to amend, these constituted reversible error, nevertheless, inasmuch as we are holding, for other reasons, that a new trial must be granted, we direct that the amendment should be allowed, if again sought well in advance of trial, the testimony on this matter should be received, and the said instruction omitted on retrial.

Another of defendant's employees was permitted to testify that, after the accident, he had called the child's mother to express his sympathy and that she then told him that they did not blame the driver and that the child had come out from behind a parked car. The mother was not a witness to the accident. She is not a party to nor has she any legal interest in the lawsuits. The child is not bound by admissions against interest made by her mother. The testimony was hearsay. On no conceivable ground was it admissible. It was prejudicial to plaintiffs' cases. *646 It should have been refused on plaintiffs' objection, weak though that may have been. Also received, over plaintiffs' objection, was the testimony of an 8-year-old boy living in plaintiffs' neighborhood, admitting that he remembered telling the deputies that the child had done this before and never stops to look. Contributory negligence of the 2-1/2-year-old child was not and could not be in issue. What she may have done on previous occasions could have no pertinence to the only questions in the case, namely, the driver's negligence, its proximate cause, and damages. It is urged as having been admissible for impeachment purposes, but the record discloses it could have had no such purpose. Its effect was prejudicial, entitling plaintiffs to a new trial.

The court charged the jury as follows:

"Now, drivers must notice persons in the street, of course. Drivers, however, need not watch others unless such persons evidence an intention to enter the street. The minute a person evidences any intention to enter the street, then the driver, of course, must pay attention until something happens that the law will then require him to assume from what he sees happening that that person is about to enter the street. Well, that is a perfectly practical rule anyway, if you stop to think. If when you are driving down Michigan avenue here in Kalamazoo, for example, you have to observe every person walking on the sidewalk and keep them in your view, goodness, you would hit somebody in the street where you should have been looking. But when that person on the sidewalk does something which a reasonable person would notice, would or should notice, that indicates he is about to step into the street, then your observation must be towards that person as well as what is in front of you to be seen."

It appears that the street on which the accident occurred is a lightly traveled residential street without *647 sidewalks and with lawns extending to the tarvia. Michigan avenue in the city of Kalamazoo is a busy, main thoroughfare. The use of the latter by way of illustration in negativing the duty of drivers to watch pedestrians on the sidewalks along a busy thoroughfare was unfortunate, indeed, tending to minimize the driver's duty, on a street with residential lawns extending right up to the pavement, to maintain a lookout, at least within the confines of the street, for the children which he knew had crossed the pavement in front of him. Aside from that, to the extent that this instruction represents an attempt to follow language in Braxton v. Gazdecki, 255 Mich 518, that language is equally unfortunate as applied to the facts in that and in this case. As this writer has already observed in Kaiser v. Gooden, 325 Mich 521, 527, about the Braxton Case:

"this Court affirmed the finding of the trial court, sitting as a trier of the facts without a jury, that defendant was not, as a matter of fact guilty of negligence. Our holding was, in effect, that the evidence did not preponderate against such finding of fact. In so holding this Court did not have occasion to, nor did it pass on the question of whether defendant should have been held to be free from negligence as a matter of law."

Applied to the case at bar, the language in Braxton should hardly afford the basis for jury instruction as to the law and its requirements for motorists' maintenance of a lookout for pedestrians on the streets. The gratuity in Braxton might more properly have emphasized that once a pedestrian does enter a street, as the child did both there and here, it is the duty of the motorist to see him and keep him in observation. Here the child, before being struck, walked on the pavement at least as far as from its *648 east edge to its center, 9-1/2 feet, before the driver saw her in front of him. It being the duty of the jury to determine whether the driver was guilty of negligence in not seeing her on the pavement before he did, the language from Braxton as to the absence of a duty to observe the child before she entered the street could only serve to confuse the jury. It should not be repeated on retrial.

Reversed. Remanded for new trial, with costs to plaintiffs.

CARR, C.J., and KELLY, BLACK, KAVANAGH, SOURIS, SMITH, and O'HARA, JJ., concurred.