Barker v. Savas

<p>1. Highways — Pedestrians—Death—Cause op Death — Evidence. Evidence held sufficient to sustain a finding that plaintiff’s child was killed by an automobile, and that defendant’s automobile killed it. (Page 267.)</p> <p>2. Trial — Weight of Evidence — -Question por Jury. The truth of testimony is for the jury. (Page 267.)</p> <p>3. Highways — Sufficiency op Evidence. In action for death of child killed while riding his tricycle on a broad open highway in the daytime, evidence held sufficient to sustain a finding that an automobile driver was negligent, although no one saw the accident,1 (Page 268.)</p> <p>4. Highways — Persons on Boad — Duty to See Persons on Road. The law imposes the duty on an automobile driver to see persons on the road in front of him where his view is unobstructed.1 (Page 268.)</p> <p>5. Highways — Collisions—Contributory Negligence — Evidence. Evidence held to show that child on tricycle on a road killed by an overtaking motor truck was not guilty of contributory negligence. (Page 270.)</p> <p>6. Death — ‘Presumptions as to Due Care by Deceased — Burden op Proof. A child killed on the road on a tricycle by an overtaking motor truck, in the absence of evidence to the contrary, will be presumed to have been exercising due care, the burden being on defendant to rebut the presumption.2 (Page 270.)</p> <p>7. Evidence — Conclusions op Witness. Testimony that defendant had admitted driving his automobile on the B road "about the time we figured the accident happened’’ was a conclusion, and should have been stricken. (Page 270.)</p> <p>8. Appeal and Error — Harmless Error — Evidence. Where there was no controversy as to the time defendant drove his motor truck along a road, a conclusion of a witness that he admitted driving it there "about the time of the accident,’’ was harmless.3 (Page 270.)</p> <p>9. Evidence — Conclusions op Witness. Testimony of a witness that he went to the scene of an accident and saw deceased lying there and saw the track of the automobile “that had run over him” was a conclusion, and should have been stricken. (Page 270.)</p> <p>10. Appeal and Error — Harmless Error — Evidence. Although testimony of a witness was a conclusion, it was harmless, where every fact with which the witness was acquainted was then and there known to the jury, and the jury knew it was a conclusion, under Comp. Laws 1907, section 3285, providing that no exception shall be regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting.1 (Page 270.)</p> <p>11. Death — Child—Contributory Neglisence op Parent. A parent was not guilty of contributory negligence in allowing a bright six year old child to go a short distance down a road with a tricycle, where she watched him until he started to return. (Page 271.)</p> <p>12. Appeal and Error — Harmless Error — Instructions. Where there was no contributory negligence, there was no prejudicial error, if error, in instructing that under the pleadings the jury could not take the question of contributory negligence into consideration. (Page 271.)</p>