In the absence of eyewitnesses to the accident, deceased must be presumed to have been free from contributory negligence. The only question before us is whether the case should have been submitted to the jury on the issue of the negligence of defendant's driver.
Defendant's driver was obliged to keep a lookout for pedestrians and to see what should have been seen. SeeZuidema v. Bekkering, 256 Mich. 327. He is obliged to have his car under control at all times and to exercise reasonable care. He is chargeable with negligence if he fails to discover a pedestrian whom he should have discovered in time to avoid injury, if reasonable care in keeping a lookout had been exercised. 42 C. J. p. 911.
There is no explanation for the failure of defendant's driver to see decedent at the time of the accident. If defendant's driver had been maintaining a lookout, he would have seen him. If he did not see the decedent, he was not looking, for the deceased must have been within the range of his lookout. The jury, governed by the presumption that decedent was free from negligence, had the right to draw inferences from the circumstances as to the negligence of defendant's driver. In a similar case, Wilkins v. Bradford, 247 Mich. 157, 160. it was said:
"There was no direct evidence of negligence. But negligence may be proved by circumstantial evidence. Burghardt v. DetroitUnited Railway, 206 Mich. 545 (5 A.L.R. 1333). The jury may draw legitimate *Page 463 inferences from established facts, and to do so is not to speculate or guess the facts. Heppenstall Steel Co. v. RailwayCo., 242 Mich. 464.
"As there were no eyewitnesses to the injury, the law raises the presumption that decedent was in the exercise of due care. Contributory negligence was not a question for the jury. The driver of an automobile has the duty, not only to keep a lookout ahead and to have his car under control, but also to drive at such speed that he can stop within the range of his vision. The latter is a rule of safety. Ruth v. Vroom,245 Mich. 88 (62 A.L.R. 1528).
"Assuming, from the verdict, that defendant's car struck decedent, and from the presumption of law, that decedent was in the exercise of due care, it is a legitimate inference, if not an inevitable conclusion, that defendant was guilty of one or more of the acts of negligence charged against him. If he had kept a proper lookout, had his car under control and could have stopped within the range of his vision, he necessarily would have seen decedent and have stopped in time or driven around him. The alternative is the incredible hypothesis that defendant seasonably saw decedent and ran him down. The injury could not have occurred with both defendant and decedent exercising due care. Defendant's negligence was for the jury, and its finding that he was negligent was not against the great weight of evidence."
The trial court was not in error in submitting the case to the jury on the question of the negligence of defendant's driver.
The order of the trial court denying defendant's motion to enter judgment of no cause of action should be affirmed and the cause remanded for a new trial, with costs to plaintiff.
BUSHNELL, C.J., and POTTER, J., concurred with McALLISTER, J. *Page 464