Budnick v. Peterson

Sharpe, J. On May 18, 1920, at about 11 o’clock at night, 3 boys, William Peters, Charles Swift and Clarence Herbst, each about 15 years of age, who had been attending an entertainment at a sehoolhouse and were returning to their homes, were going north, walking abreast with locked arms, along what is known as Henry street, a highway just outside the limits of the city of Muskegon. This street was 66 feet in width and had in the center a 16-foot asphalt pavement, without curbs. The defendant was driving an automobile in the same direction the boys were walking. They saw his car coming behind them when some distance away. They also saw a car approaching from the north. They moved over to the east outside the pavement to let these cars pass. They did not unlock arms, but moved closer together. Herbst, on the east, was near the edge of the ditch, and Peters, on the west, was in the sand near the pavement. Defendant did not see the boys. His car, in passing, struck Peters, throwing him about 25 feet. The first intimation he had of the collision was “when he felt the bump” and his companion, Miss Hamil, said to him that he had “hit something.” He then stopped and took the boy to a hospital, where he soon after died. There was testimony that another car, not observed by the boys, was going in the same direction as defendant. Two witnesses testified that these cars [680] were apparently racing. They were almost, if not quite, abreast at the time of the collision. The plaintiff had verdict and judgment for $3,125. But two questions are raised by the assignments of error: (1) The contributory negligence of the deceased. (2) Plaintiff’s right to recover under the survival act. 1. Contributory Negligence. There was evidence clearly establishing the fact that at the time Peters was struck he was outside the traveled portion of the highway. This should have been to him a place of safety. Defendant in no way justified himself in invading. it. His negligence in doing so is conceded on this record. The reciprocal rights and duties of pedestrians and drivers of automobiles, on the public ways, have been considered by this court in several recent cases. Perkins v. Holser, 213 Mich. 579, and cases there cited. It is unnecessary to repeat what was therein said. Those relied on by defendant’s counsel (Hill v. Lappley, 199 Mich. 369; Fulton v. Mohr, 200 Mich. 538; Deal v. Snyder, 203 Mich. 273; Gillett v. Traction Co., 205 Mich. 410) are all cases in which the person injured was on the traveled portion of the street. The distinction is apparent. This highway was constructed for use by Peters quite as much as by defendant. It was defendant’s duty to keep on the traveled portion thereof. He was chargeable with notice that pedestrians might be walking along the road. The law required him to have his car equipped with lights. By their use he could observe the presence of pedestrians and they be informed of his approach. Peters saw the light from defendant’s car. He also saw the car approaching from the north. He yielded to them the entire width of the pavement, 16 feet. This space was sufficient to [681] permit the two cars, if operated with reasonable care, to pass in safety. This defendant did not see Peters. If his vision was obscured by the glaring lights of the approaching car, it was his duty to slacken his speed and have his car under such control that he might stop it immediately if necessary. Peters, as a matter of law, was not chargeable with notice that the defendant might be compelled to leave the pavement to avoid a collision with the approaching car. He was in no such apparent danger as would have justified an instruction that his failure to step further from the pavement rendered him guilty of contributory negligence. See Gerhard v. Ford Motor Co., 155 Mich. 618 (20 L. R. A. [N. S.] 232); Bouma v. Dubois, 169 Mich. 422. 2. Survival. If there was any competent evidence tending to show that the deceased survived the injury, the judgment entered must be affirmed. There was evidence tending to prove that when he was picked up he was groaning and continued to do so until he reached the hospital. His dissolution occurred about 15 minutes thereafter. This court has on several occasions considered the question here presented. In Swaczyk v. Detroit Edison Co., 207 Mich. 494, it was said: “The recognized test in this State distinguishing between the two causes of action, survival and instantaneous death, is whether the active cause of death continued to operate directly upon the injured person until life was extinct.” In West v. Railway, 159 Mich. 269, this court said: “Where there is a continuing injury, resulting in death within a few moments, it is ‘instantaneous’ within the meaning of the statute.” See, also, Olivier v. Railway Co., 134 Mich. 367 (3 [682] Ann. Cas. 53); Ely v. Railway Co., 162 Mich. 287; Paperno v. Engineering Co., 202 Mich. 257. On the record here presented,- we - cannot say as a matter of law that death was instantaneous. The judgment is affirmed. Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred.