Siegel v. Detroit Cab Co.

Sharpe, J. Cass avenue in Detroit runs north and south, and is 50 feet in width from curb to curb. Henry street crosses it at right angles. There is a single street car track on it. The pavement was dry. Plaintiff’s decedent, while crossing Cass avenue from east to west, in a diagonal direction, a little distance from the cross-walk at the intersection, at about 3 o’clock in the afternoon, was struck and injured in the left arm by a cab owned by defendant and driven towards the north on Cass avenue by one of its drivers. Blood poisoning set in, and he died about a week later. Plaintiff, his widow, as administratrix, here seeks to recover the damages sustained by the estate, due to such injury and death. She recovered a verdict for $14,000, which, on motion for *622 a new trial, was reduced to $8,000, and, on remittitur being filed for the excess, a judgment was entered in her favor for that amount. Defendant seeks review by writ of error. The assignments present the following questions: 1. Negligence of defendant. 2. Contributory negligence of deceased. 3. After discovered, negligence. 4. Proof of damages. 1. Negligence of Defendant. One of plaintiff’s witnesses, who first saw the cab when it was within 12 or 15 feet from the deceased, testified that it was traveling “between 25 and 30 miles per hour.” While on direct examination defendant’s driver testified that he was not driving faster than 12 or 13 miles an hour, on cross-examination he was asked: “Will you say you were not going faster than 12?” and answered, ‘ ‘ I will set no speed limit at all on it. ’ ’ A further question was asked: “At the time of the accident how fast was your car going?” and answered, “I don’t know.” A passenger in the car, called by defendant, testified that the car was going “about 20 or 25 miles an hour, 15 or 20 miles an hour, not more than that.” It appears that the handle of the door was broken off in the collision and deceased’s arm badly lacerated. A question for the jury was thus presented. 2. Contributory Negligence of Deceased. Ordinary care requires that a person about to cross a street in a busy section of a city should “look before attempting to cross.” Deal v. Snyder, 203 Mich. 273, 275. The trial court so instructed the jury. He also said to them: “But if a person walks out into a street and passes the center of the street, there is no duty at common law imposed upon him to look in the direction to his *623 left where vehicles might be approaching on the wrong side of the street. * * * He has a right to assume under those circumstances that the vehicles will obey the law and be on the proper side of the street.” There was proof that deceased was struck when he was several feet beyond the center of the street. We find no error in the instruction given when applied to the testimony submitted. 3. Subsequent Negligence. Defendant’s driver testified that he saw deceased when he “came out of the store and dived across the street; ’ ’ that when the deceased was “about five feet from the curb, I tried my best to slow down;” that when he saw deceased did not stop he put on his brakes and ‘ ‘ swerved the car directly away from him as hard as I could; ’ ’ that deceased “was going faster than I could walk and I can walk pretty fast.” He further testified that when he first saw deceased he was 18 or 20 feet from the front of the car, and that he was not driving faster than 12 or 13 miles an hour; that his brakes were in good condition, and that he could stop the taxicab within about 10 feet. The plaintiff produced two witnesses, one the owner and driver of a taxicab, and the other a driver, who, from tests made by them with a similar car, testified that if the brakes were in good condition when being driven 12 miles an hour the car could be stopped within 2 feet when on a dry pavement. This testimony was admissible. Under it the court was warranted in submitting the question of after-discovered negligence to the jury. Kelley v. Keller, 211 Mich. 404. We find no error in the instruction given relative thereto. A different question was presented in Barriger v. Ziegler, 241 Mich. 83, relied on by defendant. *624 4. Proof of Damages. The deceased was engaged in the express and cartage business at the time of his injury. He was 40 years of age, and in good health. The plaintiff, who was somewhat familiar with his business, testified that in her'“best judgment” his earnings were $50 per week. She produced some of his books, but they were not kept in such a way that any information could be obtained from them. The doctor at the hospital where he was taken testified that he “appeared to be suffering pain.” His probability of life was 28.18 years. The proof on the question of damages was not at all satisfactory. But, in view of the reduction of the verdict from $14,000 to $8,000, as required by the trial court as a condition to his denial of the motion for a new trial, we feel constrained to hold that there was some proof of damages and that the amount as reduced cannot be said to be an excessive allowance to an estate for the pain and suffering and the loss of earnings of a man in good health who had a probability of life exceeding 28 years. The judgment is affirmed. Fead, Clark, McDonald, and Potter, JJ., concurred with Sharpe, J.