De Witt v. Gerard

275 N.W. 729, 281 Mich. 676, 1937 Mich. LEXIS 947

Opinion

Dead, C. J.

While the testimony is not precise as to details, it appears that, while crossing Woodward avenue at Sproat street in the city of Detroit, from west to east, and when he had reached the street car tracks in the center, approaching traffic confused plaintiff, he stepped back and forth to avoid cars but was struck by an automobile coming from the north and was thrown on the west rail of the west street car track, where he lay unconscious. A street car, coming from the north, struck him.

In action for damages against the city, defendant had verdict of a jury and judgment.

Plaintiff complains because, in its charge, the court confined the question of the street car motorman’s negligence to the time when plaintiff was lying on the track. This limitation was in accordance with the declaration and strictly with plaintiff’s opening statement. Plaintiff made no motion to amend the declaration to cover the prior period. Moreover, the testimony does no.t disclose a state of facts which imposed a duty, bearing upon the action here, on the motorman toward plaintiff prior to the time the latter was struck by the automobile, unless the inadmissible assumption be indulged that the motorman was required to anticipate that plaintiff might be struck by an automobile and thrown upon the street car track.

Affirmed, with costs.

North, Wiest, Butzel, Bushnell, Sharpe, Potter, and Chandler, JJ., concurred.