McClinchey v. Chihocki

161 N.W.2d 757, 11 Mich. App. 591, 1968 Mich. App. LEXIS 1336

Opinion

Per Curiam.

These actions involve an automobile accident in which plaintiff Shirlene McClinchey, 14 years old, a pedestrian, was struck by a vehicle being driven by defendant Diane M. Chihocki. The accident occurred on October 16, 1961, when plaintiff attempted to cross Trenton road in Southgate, Michigan, in a school zone near Davidson Junior high school.'

Following the presentation of evidence in a jury trial, the trial judge granted defendants motion for directed verdict of no cause of action holding, as a matter of law, that defendant was free of negligence and that plaintiff was contributorily negligent. Plaintiffs have appealed contending that the trial judge performed the jury’s function in weighing conflicting evidence and deciding disputed factual questions.

We find, on examining the record, numerous facts in dispute and unsettled, e.g., whether plaintiff was walking or running in attempting to cross Trenton road, whether defendant was driving too fast for the conditions present, whether defendant should have seen plaintiff sooner than she claimed to have seen her, whether plaintiff ran into the vehicle or was hit by it, et cetera. It was error for the trial judge to rule, as a matter of law, that defendant was free of negligence and that plaintiff was con-tributorily negligent. There were disputed factual questions present requiring jury determination.

Reversed and remanded for new trial not inconsistent with this opinion.

T. G-. Kavanagh, P. J., and Holbrook and Beer, JJ., concurred.