Jenkins v. Bentley

Toy, J. Robert Victor Jenkins was injured on November 20, 1933, when a Ford truck owned by defendants and being driven by defendant Curtis on Kentucky avenue in the city of Detroit backed against a tree located 27 inches from the curb of the street and pinning said Jenkins, who was leaning against the tree, between the truck and the tree. The injured boy was 11 years old at the time of the accident and these actions were brought by his father Robert Jenkins in his own name and also as guardian of the boy to recover damages arising because of such accident. The cases were consolidated for purposes of trial and were tried by the court without a jury. In the first above entitled cause the plaintiff recovered $289.06 for amounts expended by him because of his minor son’s injuries. In the second above entitled cause, plaintiff as guardian for his minor son had judgment in the sum of $3,000 and costs. Both parties appeal.from the latter judgment and plaintiff alone appeals in the first above entitled cause. Plaintiff Robert Jenkins contends on his appeal that the court erred in failing to award damages *83 for the value of the services performed by himself and his wife in caring for and nursing the child; for failing to award damages for loss of the services of the infant son; and for failing to award damages for loss of future services of said minor. Plaintiff does not request that a new trial be granted for these alleged errors nor that the cause be remanded with directions, but asks that this court award such damages where not awarded by the trial court. This we cannot do. Court Buie No. 64 (1933) provides, in part: “Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such judgment may be affirmed or reversed, the cause remanded with directions, or a new trial ordered.” Furthermore, we must decline to reverse that cause for the reasons assigned as error in view of the fact that no motion for neio trial was made in the court below asking that verdict be set aside because against the overwhelming weight of evidence. See, Boran v. New York Life Ins. Co., 274 Mich. 638, 642 (on rehearing) and cases therein cited. Therefore the judgment entered in the first above entitled cause will be affirmed. On cross-appeal in the second above entitled cause, plaintiff and cross-appellant urges the inadequacy of the judgment, and seeks to have us increase the same. This we decline to do for the reason hereinbefore stated. Defendants and appellants in this latter case urge on appeal: (1) that plaintiff was guilty of contributory negligence; (2) that defendants were guilty of no actionable negligence. *84 We cannot agree with them in their contentions. The hoy, when injured, was leaning against a tree 27 inches from the curb. He was under no legal obligation to anticipate that defendants ’ truck would be backed against him, nor was he apprised of any purpose upon part of defendant driver to back the rear of his truck over the curb. The record discloses that the accident happened while the driver of the truck in turning around in the street, and after having backed part way, stopped, cramped his front wheels as if to proceed forward, and then suddenly, with a jerk, backed against the boy. True, the driver did not see the boy before backing into him yet the law imposes upon him a duty to ascertain that the way is clear before proceeding backward over it. Backing against plaintiff without making such assuring observation is a lack of ordinary care and is sufficient to constitute actionable negligence. Kinsler v. Simpson, 257 Mich. 7; Roach v. Petrequin, 234 Mich. 551. We concur in the language of the court in Taulborg v. Andresen, 119 Neb. 273, 280 (228 N. W. 528, 67 A. L. R. 642): “The law does not forbid the backing of an automobile upon the streets or highways, and to do so does not constitute negligence, but the driver of an automobile must exercise ordinary care in backing his machine, so as not to injure others by the operation, and his duty requires that he adopt sufficient-means to ascertain whether others are in the vicinity who may be injured. * * * and he must not only look backward when he commences his operation, but he must continue to look backward in order that he may not collide with or injure those lawfully using such street or highway (citing authorities).” See, also, Embry v. Reserve Natural Gas Co. of Louisiana, 12 La. App. 97 (124 South. 572). *85 The judgment in the second above entitled canse is affirmed. These causes having been consolidated on appeal, and deéisions having been against respective appellants in each case, no costs will be allowed either party. North, C. J., and Fead, Wiest, Butzel, Btjshnell, and Sharpe, JJ., concurred. Potter, J., did not sit.