Ebel v. Bruzewski

Wiest, J. These two cases involve the same issues, except as to the measure of damages, and, *656 upon trial before tbe court, each plaintiff had judgment. Shortly after 12 o’clock the morning of November 27, 1938, plaintiffs were riding in an automobile in Bay City when there was a collision with another car. They were not injured but their car was damaged and came to rest at the street curb, with the rear nearly the length of the car in the street. Police officers appeared upon the scene to investigate and, while plaintiffs were standing in the street near the rear of their car talking with one of the officers, defendant’s automobile came along, struck and injured them. Upon review, defendant contends that plaintiffs were guilty of contributory negligence in needlessly standing in the traveled portion of a busy city street, in the night time, beside their unlighted car, with their backs toward traffic approaching upon an ice-covered way, and they failed to establish exercise of due care under the circumstances. The fact that defendant’s automobile struck plaintiffs and not their automobile shows that plaintiffs were in the street beyond the length of their car. This, however, is not decisive of any issue in the case. Plaintiffs were at least close to the rear of their car and were there answering to an investigation conducted by the police relative to the collision which threw their car to the street curb. During the progress of such investigation the policeman was questioning them at the position on the pavement where they were struck and, if they had given the matter of their position consideration, they might well have rested assured that, while answering the policeman, they might rely upon his protection against traffic on the street. At least, the fact they were being interrogated by the policeman was enough to distract their attention from their position. *657 The circumstances of plaintiffs being where they were struck bars a holding that they were guilty of contributory negligence as a matter of law and, we think, the evidence warranted a finding that they were not guilty of contributory negligence as a matter of fact. Defendant’s negligence, is not questioned, nor could it be under his testimony. The windshield of his car was covered with frost and ice, leaving" only a peep hole which afforded no view of the position of plaintiffs, in the street, nor did he see them. He drove blindly down the street at a speed of 25 miles per hour. “Ordinary prudence requires every person who is in the full enjoyment of his faculties of hearing and seeing, before attempting a dangerous act or operation, to exercise them for the purpose of discovering and avoiding the peril. He is bound to look and listen, and if he fails to do so he will be barred of recovery for injuries that he might have discovered and avoided. For example, to stand in the carriageway of a public street at night, engaged in conversation, heedless of horses and vehicles that are passing, is held to be such negligence as will prevent recovery' for injuries resulting from being thrown down by a wagon the driver of which did not see the person injured.” 20 R. C. L. p. 113, citing Evans v. Adams Express Co., 122 Ind. 362 (23 N. E. 1039, 7 L. R. A. 678). There are exceptions to this rule and one is where the nature or cause of his being in a place where, ordinarily, he should use his sense of sight, the surrounding circumstances are such as will reasonably distract his attention, such as in this case in answering the inquiry made by the police officer. See 20 R. C. L. p. 115. *658 In such case it cannot be said that the failure to look is negligence as a matter of law but, rather, a question of fact. The judgments are affirmed, with costs to plaintiffs. Sharpe, C. J., and Bu&hnell, Boyles, Chandler, North, McAulister, and Butzel, JJ., concurred.