Ackerman v. Advance Petroleum Transport, Inc.

*98 Starr, J. This case involves plaintiff’s claim for damages resulting from fatal injuries sustained hy her minor son, Charles Ackerman, in an automobile accident which occurred about 4 o’clock in the afternoon of March 5, 1940, at or near the intersection of Florence and Linn streets in Bay City. Defendants having presented no testimony, the facts are uncontradicted. Florence street runs east and west and Linn street north and south. Linn street, north of Florence, jogs about 36 feet to the east. Both streets were paved and were approximately 30 feet wide between curbs. The jog in Linn street created a somewhat confusing .situation as to the location of sidewalks. The walk along the east side of Linn street south of Florence was located 13 feet east of the curb but did not extend north to Florence. Such walk ended at the sidewalk extending along the south side of Florence which was about 12 feet from the curb. There was a path extending from the north end of the Linn street walk to the Florence street curb. There was a walk, referred to as the “little sidewalk,” running parallel with, and about 13 feet 10 inches east of, the Linn street walk (if extended north), which little sidewalk covered the distance of 12 feet between the walk along the south side of Florence and the south curb of Florence. There was also a crosswalk parallel with, and 31% feet east of, the Linn street walk (if extended' north), which crosswalk covered the distance of 12 feet between the walk along the south side of Florence and the south curb of Florence. Such crosswalk, because of the jog in Linn street, was in line with the sidewalk along the east side of Linn north of Florence. The day was bright, and the pavements, though practically clear of snow, were wet. Defendant company’s eight-wheel tank truck and *99 tank trailer, with an over-all length of about 40 feet and equipped with air brakes, was being driven east on Florence street by its employee, defendant Conklin. Such truck and trailer approached the Linn street intersection at a speed of 8 to 12 miles an hour and crossed the intersection at 8 to 10 miles an hour. Defendant driver was familiar with the streets and intersection and knew of the sign, “watch for school children,” located on the south side of Florence street about 130 feet west of Linn. . Plaintiff’s decedent, a normal, healthy child of average intelligence, slightly over eight years old, was a pupil in the third grade in Park school. The school .grounds were located on the east side of Linn street about % block south of Florence. He had attended this school for about five weeks. He had received safety instruction in school and had been cautioned by his father regarding danger at the Florence and Linn street intersection. His route home from school was north on Linn and across Florence street. After school on the day of the accident plaintiff’s decedent and other children were throwing snowballs and playing along the east side of Linn street. Decedent was last seen running or walking rapidly north on the sidewalk along the east side of Linn near Florence. Although going north, he was looking backward to the south and west toward other’ boys who were throwing snowballs at him. He ran into, or collided with, the right side of defendant company’s tank trailer and fell, or was thrown, under the right rear wheel of the trailer and was instantly killed. The accident occurred on Florence street at a point a few feet north of the south curb and just east of the path leading from the end of the sidewalk on the east side of Linn street to the Florence street curb. Defendant driver approaching the street intersection from the west *100 and plaintiff’s decedent approaching from the south both had unobstructed views of the scene of the accident. Plaintiff, as administratrix of the estate of her deceased son, began suit against defendant company as owner, and defendant Conklin as driver, of the truck and trailer. In her declaration plaintiff alleged negligence and also “gross negligence and wilful and wanton misconduct” on the part of defendants; also that defendants’ gross negligence and wilful and wanton misconduct excused any contributory negligence on the part of her decedent. She alleged further that her decedent “was of such tender age as to be incapable of negligence or contributory negligence.” Defendants answered, generally denying plaintiff’s claims of negligence, gross negligence, and wilful and wanton misconduct, and alleging contributory negligence on the part of plaintiff’s decedent. The case was tried before a jury. At the conclusion of the opening statement by plaintiff’s counsel, defendants moved for a directed verdict on the ground that such opening statement did not set forth a cause of action. Such motion was denied. At the conclusion of plaintiff’s proofs defendants moved for • a directed verdict, on the ground that there was no proof of their negligence and that plaintiff’s decedent was guilty of contributory negligence as a matter of law. The court reserved its decision on such motion. Defendants presented no testimony. Plaintiff then requested the trial court to submit to the jury the question of “whether or not the defendant driver was guilty of wilful and wanton misconduct.” Plaintiff also requested the court to-instruct the jury “that they might find the defendant driver guilty of wilful and wanton misconduct” *101 ■which would excuse contributory negligence on the part of plaintiff’s decedent. The trial court ruled that the case should be submitted only on the questions of negligence and contributory negligence. The jury returned a verdict for plaintiff of $1,500. Defendants’ motion for judgment notwithstanding the verdict was denied, and they appeal. Defendants contend that the verdict was against the great weight of the evidence; that the trial court erred in not directing a verdict for defendants and erred in denying their motion for' judgment notwithstanding the verdict; also that the proofs did not establish negligence on the part of defendants, and that plaintiff’s decedent was guilty of contribu-, tory negligence as a matter of law. Plaintiff cross-appeals, alleging error by the trial court in denying her request to submit to the jury the question of whether or not defendant driver was guilty of wilful and wanton misconduct and also error in denying her request to instruct the jury that they might find defendant driver guilty of wilful and wanton misconduct which would excuse contributory negligence on the part of her decedent. Plaintiff contended further that, in the event the judgment was reversed on this appeal, a new trial should be granted because of such errors. Defendant driver, being called by the plaintiff for cross-examination, testified that at a speed of 8 or 10 miles an hour he could stop the truck and trailer in 4 or, 5 feet; that, as he approached the intersection, he saw a child on the sidewalk on the east side of Linn street about 60 feet south of the Florence street curb; that such child was running north but was looking back to the south and west. He said that the child continued to run north, and that he watched him until the front half of the truck and *102 trailer had passed to the east and he conld no longer seq the boy, because the cab cut off his view; that when he last saw the child he was still running north and was 10 or 12 feet south of the Florence street curb. Defendant driver testified further: “Q. You continued in a straight direction until the boy passed out of your view? “A. True. “Q. Then what did you do? “A. I cut my truck to the left and took to the right again in an “S” motion, to give the lad as much chance as he could possibly use. “Q. -The front of your vehicle was east of where the boy was when he passed out of your view? “A. That is true. * * * “Q. And did you apply your brakes? “A. I did, I pushed my brakes. * * * “ Q. * * * Now, then, you at no time sounded a horn crossing the intersection, did you? “A. I don’t think I did.” A witness living near the scene of the accident testified that she saw plaintiff’s decedent running-north on the east side of Linn street until he reached the sidewalk along the south side of Florence street, and that he was looking backward toward the south. A 12-year-old boy, who was near the scene and who knew plaintiff’s decedent, testified, in part: “When I saw Charles Ackerman (decedent), he was by the south end of Peters’ house (at the southeast corner of Florence and Linn streets). He was on the sidewalk on the east side. He was playing, throwing snowballs with the others. On the other side were four kids throwing at Charles. * * * These other children were in front of the second house. Charles Ackerman was by the south side of the corner house. They were all throwing snowballs. Charles Ackerman threw a couple back. * * * *103 “Q. When did you look towards the corner of Florence and Linn again? “A. When someone yelled,‘Chuckie, look out.’ “Q. What did you do then? “A. I seen the oil truck, it was between me and Charley. * * * “Q. What did you see when it passed? “A. Charley was lying in the pavement.” Another boy, who was on duty as school safety boy at the intersection at the time of the accident, testified, in part: “Chuckie was right by Peters’ house, on the southeast' corner. That would be on the east side of Linn street, and the south side of Florence street. * # * There were four boys behind him, throwing snowballs at him. He looked back and threw a couple, and then started to walk fast and look back. He was walking north and looking south. # * * When I looked again the truck was just a little ways past the corner. That would be east of the corner, and Chuckie was 10 feet east of the corner. He was in Florence street. He was lying on the pavement.” The county coroner, who examined the truck and trailer for any marks in connection with the accident, testified, in part: “In the middle of the trailer there was a spare tire. I presume that it had hung there quite a while, as it had picked up quite an accumulation of oil and dust. This tire showed marks of some object being pulled down there, and later in checking the body, I found the hands of the little boy corresponding with the grease on the tire.” A police officer, who examined the truck and trailer soon after the accident, testified, in part: “I found the imprint of two hands on the extra tire under the trailer. That tire was mounted hori *104 zontal. There were small hand prints on it. # * •* The marks were fresh, and I saw them on the rubber tire.” This case, like all cases involving small children, arouses our sympathy. However, as said by Mr. Justice Butzel in Colvaruso’s Guar diem v. Stroh Brewery Co., 301 Mich. 245, 248: “It is our duty to judge the case by established rules of law, although we can readily see how sympathy might have affected the verdict of most jurors if the case were submitted to them.” The first question before us is, did the .testimony present a question of fact for jury consideration as to the negligence of defendant driver? The driver admitted that, when approaching the intersection, he saw the sign on the south side of Florence street, “watch for school children,” and that he knew he was entering a school zone. He saw plaintiff’s decedent running north on the east side of Linn street and continued to watch him until he was 10 or 12 feet south of the Florence street curb; that plaintiff’s decedent, although running north, was looking backward to the south and west. Defendant driver said, in substance, that he swerved his truck to the left and then back to the right in an “S” motion “to give the lad as much chance as he could possibly use.” . It is plain that the driver swerved his truck to the left because he recognized the imminent danger of an accident. However, he neglected to sound his horn to attract the boy’s attention and to warn him of the danger. The driver testified, “I claim I reached for the horn, I don’t remember if I reached it or not as I turned to the left.” This statement shows that he realized the danger but failed to give warning.- He could have stopped his truck in 4 or 5 feet but failed to do so. *105 We are convinced that the testimony presented a question of fact for jury consideration as to the negligence of defendant driver. Under the testimony the question of the driver’s negligence was a matter upon which the minds of ordinarily prudent men might reasonably differ. In Kelley v. Keller, 211 Mich. 404, 409 (20 N. C. C. A. 228), we said: “A very easy and simple way of doing so would have been to attract the boy’s attention by sounding his horn, but he did not do this. He says he attracted the attention of the traffic officer with it. If the horn were working well enough to attract his attention, no reason appears why it would not have attracted the attention of the boy had it been soiinded. Again, the driver testified that he could stop the truck in five feet at the rate he was traveling. If this were true, it becomes a serious question as to whether he ought not to have stopped before he reached the boy. One witness gave it as his judgment that if the driver had kept on the circle which he was making instead of turning to the right just before he reached the curb, he would have avoided the boy. We think there was ample testimony from which the jury could infer that the driver did not use ordinary care to discover the peril of the boy nor to avoid the collision after he became aware of it. ’ ’ Having concluded that there was a question of fact for jury determination as to the negligence of defendant driver, the next question is whether or not plaintiff’s decedent was guilty of contributory negligence as a matter of law. ■ Plaintiff’s decedent was a normal, healthy boy, slightly over eight years old, and one of his teachers testified that he “was a bright boy,’’’“who was able to concentrate under almost any conditions, no matter what the surroundings were. * * * He had a capacity for intense concentration. He was very enthusiastic. ’ ’ *106 The law is well settled in this State that a child of the age of plaintiff’s decedent is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age, intelligence, and experience, and that failure to exercise such degree of care is negligence. The fact that plaintiff’s decedent may not have had as mature judgment as an adult will not excuse him from exercising the judgment and discretion which he possessed or from heedlessly rushing into apparent and known danger. If he knew and understood the risk and danger of crossing a street intersection in which traffic was passing, then the rule of contributory negligence is properly applicable. He was chargeable with that degree of care reasonably proportionate to his age and capacity. Mollica v. Railroad Co., 170 Mich. 96 (L. R. A. 1917 F, 118). Plaintiff’s decedent had received safety instruction at school and had been cautioned by his father as to the danger in crossing Florence street at the Linn intersection. As he went north on Linn street on his way home, he had an unobstructed view of the Florence street crossing, and he is presumed to have • seen what was plainly visible. We are satisfied that he had the capacity to understand the danger entailed in crossing Florence street, and that he also had the capacity and ability to use care and caution to guard against the dangers of such crossing. In Thornton v. Ionia Free Fair Ass’n, 229 Mich, 1, 9, we said: “The general rule imputes that lack of capacity up to the age of seven years, and some courts have applied it as a 'prima facie presumption until the age of 14 is reached, putting the burden of proof on those claiming contributory negligence. But age alone is not the conclusive test. Experience and capacity are also to be considered. As was said in *107 Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271), where the injured child was 7 years and 4 months old, ‘Age is not the true test in such cases. It is the intelligence of the boy, not his age, that must control.’ By the tests of capacity and experience children younger than 7 years have been held guilty of contributory negligence as a matter of law.” In Clemens v. City of Sault Ste. Marie, 289 Mich. 254, we said : “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. Baker v. Railroad Co., 68 Mich. 90. But age is not the true test in such cases. It is the intelligence of the boy, not his age, that must control. Trudell v. Railway Co., 126 Mich. 73 (53 L. R. A. 271). * * * Everyone is bound to use that degree of care which a reasonably prudent person of like age, intelligence, and experience should ordinarily use under like circumstances.” See, also, 5 Thompson, Commentaries on the Law of Negligence (2d Ed.), chap. 151, art. 8, §§ 6309-6313. Plaintiff’s decedent was not relieved of the duty of making proper observation before crossing Florence street merely by reason of his age or the fact that other boys were snowballing him. Chadwick v. Kempf, 300 Mich. 402; Apps v. Walters, 216 Mich. 17. The testimony and the physical facts and circumstances of the accident conclusively established contributory negligence on the part of plaintiff’s decedent. There was no question of fact for submission to the jury. The evidence did not present a question of fact as *108 to the wilful and wanton misconduct of defendant driver. ■ There was no evidence showing such misconduct or from which it could be inferred. The judgment is reversed without a new trial. Defendants shall recover costs. Chandler, C. J., and Boyles, North, "Wiest, Btjtzel, Bushnell, and Sharpe, JJ., concurred.