Plaintiff Ronald Kaiser, then 5 years and 8 months of age, was struck by an automobile driven by defendant Nelson Gooden on the Bolt highway, also known as Apple avenue. The accident occurred about 1:30 p.m. on March 27, 1946. This through highway between Grand Rapids and Muskegon has a 22-foot pavement with 6-foot gravel and clay shoulders on either side.
Gooden was traveling at a speed between 35 and 45 miles per hour in a westerly direction, with nothing to obstruct his vision for over 500 feet. He first saw Ronald at a distance of about 150 to 200 feet, standing about 4 feet north of the pavement, on the shoulder, facing north, with another boy who was facing south. While Gooden was watching them and as he approached closer, Ronald whirled around and ran in front of Gooden's car. Gooden testified that the day was clear, the pavement dry, and that his brakes and horn were in good condition.
Just before the accident a little girl was standing near a mail box on the south side near the highway. Gooden said he took his foot off the accelerator as he approached the boys and, when Ronald darted into the road, he applied his brakes and swerved a little, but was unable to avoid the accident. Ronald was struck by the front of the Gooden car between its headlight and grill, and was thrown to the center of the road. The Gooden car stopped within 20 or 25 feet and Ronald was put in another car and taken to the hospital.
Ronald, who was severely injured, was on his way to school. He remembered running across the pavement and that he looked when he got to the center of the highway and said he did not see any car coming. He admitted running with his head down.
The only eyewitness who testified, other than Mr. and Mrs. Gooden, was Mrs. Jean Post, who lived in the neighborhood and who was driving her car in *Page 523 the opposite direction of the Gooden car. She noticed the boys and the speed of the approaching car and saw Ronald run out and said she knew he was going to be hit. She screamed but without avail. She testified that Ronald "turned around and darted on the highway" when the Gooden car was "nearly right there," and that she was only about 40 feet from the point of impact.
On his direct examination, Gooden said in part:
"I knew there were boys on my right hand side. I didn't take my attention off the boys long enough to take a good look at the little girl on the other side of the road and then looked back to see the boy in front of my car. I didn't tell people after the accident that I had looked at this little girl at the mail box on my left and when I looked back the little boy was in front of my car. That isn't what happened."
At the close of plaintiff's testimony the court denied defendant's motion for a directed verdict for the reason that 1 witness stated that Gooden admitted "that his attention and gaze was attracted to a girl mailing a letter, and when he looked back, the child was right in front of him."
The court permitted a re-argument on the motion after making this statement and then took the motion for directed verdict under advisement.
After the jury's verdict of $5,000, plaintiff's motion, together with one for a judgment notwithstanding the verdict was considered and granted, the court relying on Braxton v.Gazdecki, 255 Mich. 518. In granting the judgment non obstanteveredicto the trial judge said:
"The court has carefully reviewed the stenographic record of the proceedings had on the trial of the cause and the decisions cited by counsel for the respective parties in their briefs. I am of the opinion that though the evidence be reviewed in the light most favorable to plaintiff, it nevertheless fails *Page 524 to establish that defendant was negligent in any of the respects alleged against him and that he was therefore free from negligence as a matter of law. To hold otherwise would, in effect, require defendant to have operated his motor vehicle in such a manner as to have guaranteed the safety of the plaintiff. The law does not require defendant to exercise more than ordinary care in the operations of his motor vehicle and the evidence does not warrant the conclusion or inference that he failed so to do."
The record does not show that the withdrawal of Gooden's attention from the boys was the proximate cause of Ronald's injury. It shows rather that the proximate cause was Ronald's sudden and unforeseen action in darting into the path of Gooden's automobile at a time when it was so close to him that Gooden was powerless to prevent the accident.
The situation is not unlike that disclosed in Colvaruso'sGuardian v. Stroh Brewery Co., 301 Mich. 245, and the law as stated there and in Braxton v. Gazdecki, supra, is applicable.
The testimony in the instant case requires a concurrence in the conclusion reached by the trial judge, and we observe here, as we did in Foster v. Rinz, 202 Mich. 601, that —
"One cannot read this record without being overwhelmingly convinced that this was a mishap pure and simple, and that there was nothing done by the driver which caused the accident and nothing he could have done to have prevented it."
The judgment is affirmed, with costs to appellee.
REID, NORTH, and BUTZEL, JJ., concurred with BUSHNELL, J.