Blasdell v. Wooley

Michigan Supreme Court

Blasdell v. Wooley

226 N.W. 852, 248 Mich. 204, 1929 Mich. LEXIS 545

CourtMichigan Supreme Court

DecidedOctober 7, 1929

DocketDocket No. 48, Calendar No. 34,281.

StatusPublished

This text of 226 N.W. 852 (Blasdell v. Wooley) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blasdell v. Wooley, 226 N.W. 852, 248 Mich. 204, 1929 Mich. LEXIS 545 (Mich. 1929).

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Opinion

Sharpe, J.

On review of this case after a former trial, the judgment entered on a directed verdict for defendants was reversed and a new trial granted (243 Mich. 3). It has been tried again, resulting in a verdict and judgment in favor of the defendants. Plaintiff seeks review by writ of error.

At the request of defendants ’ counsel, the court instructed .the jury as follows:

*205 “I charge you, ladies and gentlemen of the jury, that the plaintiff has failed to prove that there was any excessive speed on the part of the defendant; that they have failed to prove that there was any failure of duty on the part-of the defendant, and before you can assess damages or find the defendant guilty, you must put your finger upon some definite act or omission which constitutes negligence upon the part of the defendants.”

The plaintiff, Merlin Blasdell, testified that at the time he was struck by the car driven by Mrs. Wooley he was standing with one foot on the curb and one on the pavement, with the tricycle or scooter between his legs. In this he was corroborated by the testimony of George Willis, the boy who was with him. Both so testified at the former trial, and this court held that, in view of this testimony, it was error to direct a verdict- for the defendants. If believed by the jury, it certainly tended to establish negligence on the part of Mrs. Wooley in operating the car which she was driving. It cannot be said as a matter of law that there was no proof of “any failure of duty” on her part. It is her claim, as before, that the boy was riding the scooter and darted out of an alley directly in the path of her car. A question of fact was thus presented, which should have been submitted to the jury under proper instructions.

The judgment is reversed and set aside and a new trial granted, with costs to plaintiff.

North, C. J., and Fead, Wiest, Clark, McDonald, and Potter, JJ., concurred. The late justice Fellows took no part in this decision.

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Sharpe, J.

On review of this case after a former trial, the judgment entered on a directed verdict for defendants was reversed and a new trial granted (243 Mich. 3). It has been tried again, resulting in a verdict and judgment in favor of the defendants. Plaintiff seeks review by writ of error.

At the request of defendants ’ counsel, the court instructed .the jury as follows:

*205 “I charge you, ladies and gentlemen of the jury, that the plaintiff has failed to prove that there was any excessive speed on the part of the defendant; that they have failed to prove that there was any failure of duty on the part-of the defendant, and before you can assess damages or find the defendant guilty, you must put your finger upon some definite act or omission which constitutes negligence upon the part of the defendants.”

The plaintiff, Merlin Blasdell, testified that at the time he was struck by the car driven by Mrs. Wooley he was standing with one foot on the curb and one on the pavement, with the tricycle or scooter between his legs. In this he was corroborated by the testimony of George Willis, the boy who was with him. Both so testified at the former trial, and this court held that, in view of this testimony, it was error to direct a verdict- for the defendants. If believed by the jury, it certainly tended to establish negligence on the part of Mrs. Wooley in operating the car which she was driving. It cannot be said as a matter of law that there was no proof of “any failure of duty” on her part. It is her claim, as before, that the boy was riding the scooter and darted out of an alley directly in the path of her car. A question of fact was thus presented, which should have been submitted to the jury under proper instructions.

The judgment is reversed and set aside and a new trial granted, with costs to plaintiff.

North, C. J., and Fead, Wiest, Clark, McDonald, and Potter, JJ., concurred. The late justice Fellows took no part in this decision.

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Bluebook (online)

226 N.W. 852, 248 Mich. 204, 1929 Mich. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blasdell-v-wooley-mich-1929.

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