Plaintiffs, aged 4 and 9 years of age respectively, were standing on the sidewalk at the southwest corner of the intersection of Jos. Campau avenue, a 46-foot, paved, north and south street, and Charlevoix avenue, a 26-foot, paved, through street, running east and west, in the city of Detroit. The district was residential, the payment dry and the afternoon bright and clear. Defendant Martin drove south on Jos. Campau and stopped in response to a stop sign before entering Charlevoix. Although he told police at the time that he had seen no vehicle approaching, he testified, on trial, that when he stopped he saw defendant Atwell's taxicab approaching the intersection from the east about 400 or 500 feet distant (at another time he fixed the distance at a half block, which the physical facts showed to be 132 feet); that he waited a couple of seconds and then started into the intersection. Martin's testimony was conflicting on this and other points, but
It is conceded that plaintiffs were not guilty of contributory negligence. They sustained serious injuries resulting from the accident. On trial defendant Atwell, owner of the taxicab, moved for a directed verdict and, after verdict for plaintiffs, for a judgment non obstante veredicto, which was denied. He appeals, asking for reversal of the judgment for plaintiffs without a new trial, and contends that a verdict should have been directed for him on the ground that there was no proof of any actionable negligence attributable to him.
The rule of res ipsa loquitur does not prevail in Michigan. Fish v. Grand Trunk W.R. Co., 275 Mich. 718.
Defendant places reliance on Manley v. Potts, 286 Mich. 671; and Weil v. Longyear, 263 Mich. 22. Both are distinguishable. In Manley nothing more was shown than that plaintiff was struck by a cab, with no proof of where the cab came from or how. In the Weil Case testimony affirmatively disclosed that defendant Longyear had operated his truck and conducted himself in a manner which was free from negligence. Such was not the situation at bar. Here there was testimony which, if believed by the jury, warranted the conclusion that defendant Martin stopped for the intersection and then proceeded into it when defendant Atwell's taxicab was 400 or 500 feet, or 132 feet, distant, that the view was unobstructed, the day clear and the pavements dry, that the cab traversed that entire distance, through a residential district, while Martin's car proceeded into the intersection at a rate of speed of 5 or 10 miles per hour and crossed half of 26-foot wide Charlevoix avenue, that the front of the cab then struck the left side of Martin's car hard and with sufficient force, combined with the relatively slow speed of Martin's car, to carry both vehicles to the respective positions and to inflict the consequent damage above noted. There was evidence, which,
Affirmed, with costs to plaintiffs.
ADAMS, BUTZEL, CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.