[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 68 Plaintiff's decedent, a pedestrian, was struck while crossing a public highway by an automobile driven by defendant Vern Woodruff and owned by defendant Roland Woodruff. Plaintiff's decedent died from the injuries received and this suit followed. The issues of defendants' negligence and the contributory negligence of plaintiff's decedent were submitted to a jury and there was verdict for the defendants on the ground of decedent's contributory negligence. Plaintiff has appealed.
The following facts concerning details of the accident are taken from the statement contained in appellant's brief. The accident happened in the village of Melvin, about 2 o'clock on the morning of August 25, 1935. Driving conditions were normal. Defendant Vern Woodruff was driving in an easterly *Page 69 direction on a pavement 20 feet wide. Another automobile owned and operated by a Mr. Crysler was ahead of the Woodruff car and proceeding in the same direction on its right hand side of the pavement. Crysler's car slowed down, and either stopped or had practically stopped at the time of the accident. Plaintiff's decedent was walking in an easterly direction along the northerly shoulder of this highway. When Vern Woodruff, who is hereinafter referred to as the defendant, was 200 to 250 feet back of the Crysler car he veered to his left for the obvious purpose of passing the car ahead. About this same time plaintiff's decedent turned to his right and by normal steps started to cross the pavement in a southerly direction. As he did this the Crysler car was directly in front of him and defendant was approaching from the west at a speed of 20 miles per hour and with bright lights burning. The testimony shows that as decedent reached or neared the center line of the pavement he glanced toward the west, jumped back to the north 8 feet by taking 3 to 5 hurried steps; that he was within 2 feet of the north edge of the pavement and was struck by the right central part of the front of defendant's car. The north shoulder of the highway at this point was 8 or 10 feet wide and was clear.
Special questions were submitted to and answered by the jury. From these questions and answers it appears that the jury found the defendant negligent and also found plaintiff's decedent guilty of contributory negligence. As noted above, the jury accordingly rendered a verdict in favor of defendants. On this appeal plaintiff complains of the failure of the court to give seven of her requests to charge. The second of these requests reads:
"I charge you that if the defendant car was far enough to the west at the time the decedent, Edmund *Page 70 R. Mullaney, began walking across the pavement, so that an ordinarily prudent person would believe that he had time to cross ahead of the approaching automobile, the decedent, Edmund R. Mullaney, could not therefore be charged with contributory negligence."
Obviously the trial court was justified in declining to give this request as presented. The question is not whether the request is an accurate statement of the law, but instead is it applicable to the theories upon which the instant case was tried and also whether giving the request as prepared would have been misleading to the jury and therefore prejudicial. The theory of contributory negligence upon which defendants relied was not that plaintiff's decedent was guilty of contributory negligence in attempting to walk across the pavement; but instead that his contributory negligence consisted suddenly in retracing his steps from a point near the center of the pavement and by so doing negligently placing himself in the path of defendant's approaching car. Under the circumstances the request was not applicable to the issue which the jury was to determine. And, further, giving the request as drafted would probably have been misleading and prejudicial. Its denial was proper.
Another of appellant's requests to charge embodied a statement of the law to the effect that since plaintiff's decedent died as a result of the accident, he was presumed to have exercised due care. There were several eyewitnesses to this accident, hence, the obvious impropriety of charging the jury that the presumption of due care prevailed.
The remaining requests of appellant to charge have been considered and we find each of them was properly denied because of its inapplicability to the issues of fact submitted to the jury or because of an *Page 71 inaccurate statement of the law embodied in such request.
Appellant also complains that there was error in several particulars in the charge of the court as given. We have reviewed the charge of the court and fail to find that in any of the particulars of which appellant complains there was prejudicial error. A number of these complaints are based upon the reference of the trial court to plaintiff's decedent, at the time he was at or near the center line of the highway, being "out of danger" or in "a place of comparative safety at the center of the pavement." These expressions were justified by testimony given in the case, and reference to the situation as portrayed by the testimony was necessary in the fair presentation of the law applicable to defendants' theory of contributory negligence. This was accomplished by the court without placing undue emphasis upon the testimony or the claim of defendants that had plaintiff's decedent remained in his position near the center of the highway instead of suddenly going backward to a point about two feet from the northern edge of the pavement the accident would not have happened. Whether defendant was justified in assuming he could pass to the north of plaintiff's decedent without striking him, or whether defendant was guilty of negligence in not having his automobile under better control in view of all the surrounding circumstances presented an issue of fact for the jury, and on this issue the jury found against defendants. The jury also found, and this was clearly an issue of fact, that plaintiff's decedent in suddenly attempting to retrace his steps was guilty of contributory negligence. This was the controlling issue in the case and the determination of the jury is abundantly sustained by the testimony. The record convincingly *Page 72 discloses that the jury understood the issues submitted and intelligently passed upon them.
One of plaintiff's counsel was prosecuting attorney of Sanilac county where the accident occurred. This attorney was called as a witness by defendant and subjected to cross-examination as to his official investigation of this accident. We think the practice resorted to was not proper in this case because it is a fair inference from this record that defendant's counsel was seeking thereby to get before the jury hearsay testimony concerning matters which the prosecuting attorney, through his official investigation, had learned about the accident. Likewise what the prosecuting attorney did or failed to do in making an investigation of the accident was wholly incompetent and immaterial on the trial of the issues in this case. Notwithstanding the improper procedure in this phase of the trial, we are satisfied that the rights of plaintiff were not prejudiced. Under the circumstances the trial judge was justified in holding that this procedure was not a sufficient reason for granting plaintiff's motion for a new trial, nor does it justify reversal on appeal to this court.
We have considered the reasons assigned in support of plaintiff's motion for a new trial, which was denied by the circuit judge, and also other questions raised on this appeal; but in none of them do we find a justification for holding that plaintiff did not have a fair trial in the circuit court, or for vacating the verdict and judgment for defendants based on the jury's finding that plaintiff's decedent was guilty of contributory negligence. The judgment entered in the circuit court is affirmed, with costs to appellees.
FEAD, C.J., and WIEST, BUTZEL, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred. *Page 73