Hopkins v. Lake

83 N.W.2d 262, 348 Mich. 382, 1957 Mich. LEXIS 433

• Court: Michigan Supreme Court
• Decided: May 17, 1957
• Docket: Docket 38, Calendar 46,958
• Status: Published

Opinions

Black, J.

This negligence case presents anew the question whether a verdict for defendant should or should not have been directed on motion below. It leads directly to the path relocated in Kaminski v. Grand Trunk W. R. Co., 347 Mich 417, and suggests that we read exordially Mr. Justice Cooley’s precepts as quoted on pages 420 and 421 of Kaminski’s report.

Little Tommy Hopkins is the plaintiff in this case.. His father is not. The right of action belongs to the boy. The father’s lack of care and questioned credibility as a witness, woven as such are into Mr.. Justice Kelly’s opinion, are of no present moment and do .not support an instructed verdict. Tommy is not old enough in this year 1957 to read or comprehend our conflicting views respecting his rights and those of his defendant opponent. That he— along with the profession of today and tomorrow— be enabled some day to appraise such views, these' extended presents supporting reversal of the instruction below are placed of record. Like others of his generation, he may wish to inquire how and by what means that that which is cherished by thoughtful men — the right of trial by jury — stood in jeopardy during the decade of his early boyhood.

First: This is another ease — like Welty Estate v. Wolf Estate, 345 Mich 408, 416, 417 — where the rule of favorable view has been tortured and abused in effort to bolster an instructed verdict for the defendant.. The testimony given by Tommy’s father, that he told Tommy in defendant’s presence to go to the well for a pitcher of water for the men — the favorable-to-plaintifi: inference being that defendant knew the little boy would be returning shortly through the danger area with the filled pitcher — , is weighed here by some of my Brothers (yes, on motion for directed verdict) against the father’s extrajudicial statement Mr. Justice Kelly has quoted. The testimony of witnesses Crisp and Houghton, plus that of the defendant — that he “did not at any time hear Mr. Hopkins tell Tommy * * * to go get a pitcher of water” — , is advanced by them for the same purpose; that of watering favorable-to-plaintiff view of the father’s mentioned testimony.

This is not all. The undisputed proof that defendant was precedently aware of the danger of that which ultimately happened, and then failed to act upon that knowledge when action was fairly and imminently indicated, is conveniently overlooked. This last factor is worthy of special comment, remembering always that we supposedly see — on present appeal — only that which is favorable to Tommy’s cause. I proceed.

The scene of operations was limited solely to the farmstead, constituting home of the Hopkins family. Literally, the operations were carried on in the back yard of the home. Two small children were known to be in the vicinity. The older of the 2, John, strayed away during the watermelon luncheon and the mother started to look for him. The defendant, a veteran truck driver, knowing full well that backing vision — from the driver’s position in a conventional dump truck — is completely nil save only as to the limited left side arc, actually warned the father, earlier that morning, to “watch the little boy.” Yet, when he started to back his truck that last 35 to 40 feet toward tragedy, he saw and continued to see the father standing within his (defendant’s) limited arc of view, perfectly positioned to see the entire danger area but facing away from it. Thus the defendant knew from start of the backing movement that the child’s father was not doing the very thing he, defendant, had previously warned the father to do. Defendant was aware too— on favorable view of course — that the little boy, theretofore sent from the scene of the watermelon luncheon on an errand suggesting prompt return from the direction, of errand-departure;

* would be apt to enter the very area into which the truck was starting to back. That area — even a small part of it — defendant could not see. All he had to do, before backing farther, was to call the father to attention for a look and a signal. He did not do so, with this result (quotation from father’s testimony):

“What first notified me that an accident had happened I heard the glass break. I turned around-north, towards the truck. I see Tom under the wheel. When I turned, the truck was on Tom, and he was looking at me. The mid-section of his body was. under the wheel of the truck at that time when I first heard it and turned. He was laying on his stomach and he was looking at me. He had one arm up like this (indicating). I yelled, walked over immediately to him — by him, and yelled at the truck to stop. Then as soon as I told him to stop, the truck stopped and I yelled for him to pull ahead slowly. Before I yelled for him to pull ahead, the truck had proceeded by then when he stopped up onto his shoulders, pushed him the rest of the way down in the ground. He was face down on his stomach with his head and shoulders protruding from the wheel. Back of the wheel his head was. This truck had on dual wheels — that is, 2 wheels on either side of the rear- axle, rubber tires. And they were close together, that is, each set of wheels; 2 on one side and 2 on the other, right together. I think there is maybe 2 or 3 inches in between the wheels. There is a groove as the wheels come together, I think there is on dual wheels. When I asked the defendant to pull the truck ahead he did so, and when he started to pull ahead, why, Tom was wedged in between the wheels. He started to follow the-wheels around, and I see that and I left him go until his feet was clear, and I yelled to stop again. Then he fell off. His body came np wedged between the 2 left wheels. I yelled for the track to stop. When it stopped his body fell off.”

We may assume that every experienced driver of heavy trucking equipment is or should be aware of imminent danger when he undertakes to back— blindly so far as most of the area of danger is concerned — into or across private property with little children known to be in the vicinity of his intended path. The law so declares at least. In a similar case, where a truck theretofore rented for the purpose of moving an apartment tenant to another location was being backed into position, it was said (Conroy v. Perez, 64 Cal App2d 217, 224, 225 [148 P2d 680, 684]):

“As the courts have frequently said, it is ordinarily necessary to exercise greater care for the protection and safety of young children than for adult persons possessing normal and mature faculties. Their conduct is unpredictable and one operating a motor vehicle should anticipate their thoughtlessness and impulsiveness (citing authority). The presence of children is in itself a warning requiring the exercise of care for their safety (citing authority). Moreover if the evidence shows that a driver has knowledge of the presence of children he may be held to have been responsible although it appears that he did not see the injured child in time to prevent the injury (citing authority). This is especially true where the injury occurs in or about the child’s home. Cambou v. Marty, 98 Cal App 598, 603 (277 P 365, 367). The court there said: Any reasonable man can be charged with knowledge that a child is apt to be found at any place about the family yard. Charged with that knowledge it becomes his duty to .use vigilance and care before setting in motion a dangerous instrumentality in that locality.’ ”

The supreme court of Vermont, considering another case where an automobile was backed over a 3-year-old boy, adopted from Massachusetts what I think is the right rule for cases of present nature (Callahan v. Disorda, 111 Vt 331, 338 [16 A2d 179, 182]). I quote:

“In a recent Massachusetts case it was said: ‘The backing of-any vehicle entails more or less limitation on the view by the driver of the area to be traversed and thus requires corresponding vigilance on his part to avoid causing injury to persons who are known to be, or likely to be, there, whether the vehicle is being backed on a public street or on private land.’ Eaton v. S. S. Pierce Co., 288 Mass 323, 325 (192 NE 831, 832). * * •

“Whether the defendant, without knowing exactly where the child was when she started to back, but with the knowledge of the child’s recent presence nearby and of his likelihood to make sudden and unpredictable actions with which she was charged, acted with the degree of care required by this section, was, on all the evidence, a question for the jury.”

There is no dearth of authority dealing with the question before us. It is annotated exhaustively in 67 ALR 647 and 118 ALR 242, consistent in every respect with Michigan’s early declaration (Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 118) that “As a general rule, it cannot be doubted that the question of negligence is a question of fact and not of law (citing cases).” So far as concerns Michigan law it is recorded in Guscinski v. Kenzie, 282 Mich 204; Kinsler v. Simpson, 257 Mich 7; and Roach v. Petrequin, 234 Mich 551.

Second: By means of post-argument correspondence between counsel and our clerk the “rough drawing,” mentioned in Mr. Justice Kelly’s .opinion, has now been interpreted for us. It shows that each truck, after having entered the Hopkins farm, unloaded from the east-west highway, proceeded south along the farm driveway to a point north of several pine trees. These trees stood directly north of the area being excavated and east of the area of danger. Prom that point the truck would proceed west — along a route we will call the east-west path of ingress— .a sufficient distance to permit partial turning and eastward backing thereof, along another path parallel to and south of the east-west path of ingress, toward the west end of the excavation. Thus, loading of the trucks was accomplished as each stood in position with rear thereof backed up to the west side of the excavation.

The drawing so interpreted shows the danger area as completely unobstructed. It is bounded north by the east-west path of ingress, east by the excavation and the mentioned trees immediately north thereof, south by the backing path (approximately 35-40 feet in length), and west by 2 trees. The drawing shows, also, that the little boy, faithfully clutching the filled pitcher of water on return from the well at rear of the Hopkins home, absorbed probably with the wonders of an excavating machine at his left, must have passed from north to south, entirely across the danger area and in clear view of anyone who cared to look, before the left-rear wheels of the backing truck ground him, pitcher and all, into the earth.

The drawing and its interpretation by counsel return attention to Mr. Justice Kelly’s opinion. He writes that the case is governed by “certain principles” which I shall quote with comment as follows:

“1. The question of contributory negligence is not in the case because plaintiff was too young to "be chargeable with contributory negligence. Guscinski v. Kenzie, 282 Mich 204.”

Comment: Agreed. No one has raised this question.

“2. Common-law standards of care require reasonable observation by a person backing a motor vehicle, and this is especially true where the person knows, or should know, that children are likely to be affected by such backing. Kinsler v. Simpson, 257 Mich 7; Jenkins v. Bentley, 277 Mich 81.”

Comment: Agreed. The rule of Kinsler should be applied as we have previously seen.

“3. In determining as to whether a directed verdict should be granted or not, the unimpeached and uncontradicted evidence produced by the defendant must be accepted. Christiansen v. Hilber, 282 Mich 403.”

Comment: This is not a correct statement of the applicable rule. As.was said in Yonkus v. McKay, 186 Mich 203, 210, 211 (Ann Cas 1917E, 458) (citing Woodin v. Durfee, 46 Mich 424, in support):

“To hold that in all cases when a witness swears to a certain fact the court must instruct the jury to accept that statement as proven, would be to establish a dangerous rule. Witnesses sometimes are mistaken and sometimes unfortunately are wilfully mendacious. The administration of justice does not require the establishment of a rule which compels the jury to accept as absolute verity every uncon-tradicted statement a witness may make.”

The rule just quoted was readopted, with supporting collection of authorities, in Cebulak v. Lewis, 320 Mich 710, 719 (5 ALR2d 186). At page 721 of report Cebulak places Christiansen, cited above by Mr. Justice Kelly, in its proper setting with respect to the question before us. Aside from this, I timidly venture observation that defendant Lake’s testimony was disputed with respect to the ultimate fact of this case — that , of knowledge on his part of the expectable presence of a little child, in his intended path, when he started blindly backward.

“4. There must be substantial evidence which forms a reasonable basis for the inference of negligence, and this must be more than a mere possibility that unreasonable conduct of defendant caused the injury. Poundstone v. Niles Creamery, 293 Mich 455.”

Comment: This is an incomplete statement of Poundstone’s rule. See page 460 of report (293 Mich), where the complete declaration of the Court ends with full recognition of our rule that “legitimate inferences may be drawn from established facts.” Incidentally, Poundstone should be interpreted in light of its recent treatment in Kaminski v. Grand Trunk W. R. Co., supra.

This case of Tommy Hopkins may well be summarized in recent language of the court of appeals of the 6th circuit. Speaking of another Michigan negligence ease and the defendant’s claimed right to a directed verdict, the court honored Van Steinburg, supra, and said:

“Some of us have noted a modern tendency — perhaps a growing one — to give mere lip service to these sound principles. Trial by jury is our established constitutional safeguard against assumption of unwarranted judicial authority and should be honored by steadfast observance rather than discarded by dictatorial breach.” Patterson v. Pennsylvania R. Co. (CCA 6), 238 F2d 645.

Being of opinion that the case before us should have been submitted to the jury to determine whether actionable negligence ought to be inferred, I vote to reverse for new trial.

Smith, JJ., concurred with Black, J.

The scene of the watermelon luncheon was straight south of the Hopkins home and the well at rear (southerly) door thereof. It was. also south of the ingress route and the baclring path, presently described.