Hanna v. McClave

260 N.W. 138, 271 Mich. 133, 1935 Mich. LEXIS 782

• Court: Michigan Supreme Court
• Decided: April 8, 1935
• Docket: Docket No. 95, Calendar No. 38,168.
• Status: Published

Opinions

Wrest, J.

The court was in error in excluding the testimony of defendant as to the southerly point where he saw plaintiff’s decedent upon the pavement. If he saw him south of the center of the pavement, or at the center line, and apparently proceeding on his way across and into the proper path of defendant’s automobile, it had a direct bearing upon the subsequent acts of defendant, and the question of his negligence.

My Brother’s view that such testimony “would disclose a fact equally within the knowledge of the deceased” * overlooks heedlessness, and accepts, as an inference, a degree of awareness which does not always accompany the, movements of a pedestrian.

We think Noonan v. Volek, 246 Mich. 377, 382, in point, and quote therefrom as follows:

“While such is the rule (exclusion of testimony equally within the knowledge of a deceased), its application, in tort actions, is fraught with difficulty in determining what knowledge the deceased had of a particular event, for the bar is not up until it affirmatively appears that the fact, if true, was known to the deceased. * * * Who knows what the deceased knew? * * *

“The court was in error in unconditionally excluding the testimony of defendant in the particular mentioned. The exclusion was based upon an assumption. The testimony was admissible unless the fact asserted, if true, was equally within the knowledge of the deceased. Whether so within his knowledge or not may not be inferred. Taylor v. Taylor’s Estate, 138 Mich. 658. As stated by Judge Perkins in Evidence by Survivor, § 30:

“ ‘But the testimony and record must show that the fact sought to be established was within his knowledge’ — citing Webster v. Sibley, 72 Mich. 630; McCain v. Smith, 172 Mich. 1. * * *

“In such case, the testimony should be received and the jury instructed not to give the same consideration if found to have been equally within the knowledge of the deceased. The burden of showing that the fact, if true, was equally within the knowledge of the deceased rests with one invoking the prohibition of the statute.”

In Lapachin v. Standard Oil Co., 268 Mich. 477, we again said:

“The difficulty in this case is to know which, if any, of this testimony was known to the deceased driver. The testimony was admissible unless the facts asserted, if true, were equally within the knowledge of the driver. ¥e may not infer. The burden is upon the one invoking the prohibition of the statute.”

• The court also was in error in reading to the jury the statute * requiring drivers to keep on the right side of the pavement, and the presumption of negligence arising if defendant was on the wrong side. The presumption could not be considered by the jury because the facts, claimed by defendant, appeared and the presumption cannot be weighed against the facts.

“The presumption, however, exists only in the absence of evidence, and does not serve at all when the issue of negligence is tried out upon evidence.” Noonan v. Voleh, supra.

For these errors we think the judgment should be reversed, with a new trial, and costs to defendant.

Potter, C. J., and North, Fead, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred with Wiest, J.

* See 3 Comp. Laws 1929, § 14219. — Reporter.

* See 1 Comp. Laws 1929, § 4703. — Reporter.