Leave to appeal granted by Supreme Court November 22, 1965.
Julie Ann Bonin is the granddaughter of defendant. She, her father, mother, two brothers, and two sisters lived upstairs in the farm home of defendant near Posen, Michigan. November 8, 1960, an accident occurred in which Julie was severely injured about the head. At that time, she was two and her brother Kenneth was four. Plaintiff brought suit individually, as father of Julie, and also as her guardian. The case was tried before Honorable Philip J. Glennie and a jury and resulted in a directed verdict of no cause for action.
Viewed in the light most favorable to plaintiff, the record discloses the following facts:
After breakfast on November 8, 1960, defendant and Julie's mother were going to vote; Kenneth and Julie were going with them. Preparatory to the trip, defendant went to the garage to start the car so it would warm up. The garage was about 50 feet from the house. The children remained in the house with their mother during this time. After starting the car, defendant returned to the house; Julie, Kenneth and the mother were still in the kitchen. Defendant told them to hurry up and get dressed and the mother and two children went upstairs to dress;
Plaintiff contends that under the doctrines of Detroit & M.R. Co. v. Van Steinburg (1868), 17 Mich. 99; Hopkins v. Lake (1957), 348 Mich. 382; McCullough v. Ward Trucking Company (1962), 368 Mich. 108, defendant's failure to warn presented a fact question for jury determination of negligence or lack thereof, and that it was error to direct a verdict. The law is clear that if there is evidence of negligence or evidence from which negligence may be inferred, the question of negligence or lack thereof is for the jury and to direct a verdict is to err. Defendant did not know the children were behind him when he started to back, and on this record, there is no reason to hold he should have known they were behind him. When last seen by defendant, these children, two and four years of age, were with their mother on their way upstairs to finish dressing for the trip to the polls. Lake and McCullough, supra, have no application here. There was no evidence of negligence nor evidence from which negligence could be inferred.
The trial court is affirmed, with costs to appellee.
FITZGERALD, J., concurred with QUINN, P.J.
T.G. KAVANAGH, J. (dissenting).
I believe the trial court erred in directing a verdict for the defendant.
Whether it should be inferred from this evidence is for the jury to determine. See Carver v. Detroit & Saline Plank Road Co. (1886), 61 Mich. 584 and cases cited therein at p 593; Kaminski v. Grand Trunk W.R. Co. (1956), 347 Mich. 417; Kinsler v. Simpson (1932), 257 Mich. 7; McCullough v. Ward Trucking Company (1962), 368 Mich. 108.
For this reason I believe the judgment should be reversed and a new trial ordered.