This is an action for damages for pain, suffering and permanent injuries growing out of a collision with defendants' truck on February 27, 1936, at about the hour of 2:30 p. m. Plaintiff, a married woman, lives with her husband and two children on the east side of the county highway about one half mile north of an intersection known as Salt River Corners. The country in this neighborhood is level and frequently in the winter months snow banks formed over the street making it impassable to traffic. During the period immediately preceding the date above mentioned, the weather was cold and blustery and the snowfall heavy. From about two blocks north of the corners past the Kemp house, there was a cut where snow banks formed in the street which blocked it for ordinary public travel. On Monday, February 24th, the snow plows had opened up this highway. Thursday, the day of the accident, was real cold and where the snow plow had gone through this cut, the snow banks were approximately six feet high on each side and the opening was about eight feet wide. There were no sidewalks or paths along the highway where pedestrians could walk. On the day in question, plaintiff put four fruit cans and her purse in a box, set them on a hand sled and started out to the Brooks east of Salt River Corners for milk, intending to go from *Page 598 there to the school house to get her children. She bundled herself in heavy garments, wrapped a silk scarf about her head, drew the sled by a rope looped over her arm, entered the cut at her driveway, and started south down the road, walking between the wheel tracks. She bowed her head and turned her face towards the east to protect it from the blustering snow.
About 11 o'clock on the day of the accident, defendant Ardner, owner of the truck and manager of the co-operative association, received an urgent call for coal from a school to the northeast of the village. After noon defendant Aldrich, employee of the association, loaded 3,200 pounds of coal on the truck and about 2 p. m. started out to deliver the coal one mile north and two miles east of Shepard. The truck was a ton and a half Ford in good mechanical condition. It had a cab and stake body platform six feet wide; was equipped with four-wheel brakes, chains on the rear wheels, front bumper and lights. Before Aldrich, the driver of the truck, entered the cut he reduced the speed of his truck to 4 or 5 miles per hour. As he went forward, he was looking for cars and could see about six feet ahead of the truck. After the truck proceeded about 60 feet in the cut, the accident occurred.
There is testimony that as plaintiff was proceeding through the cut, she was on the lookout for anything that might be ahead of her when suddenly the truck loomed up in front of her; that after the truck hit plaintiff she was dragged between 30 and 40 feet; that the lights on the truck were not burning, nor was any warning given; that as a result of the accident, plaintiff suffered fractures of both knees and the right ankle as well as many other minor bruises; that she remained in a hospital for about eight *Page 599 weeks; that she returns occasionally for observation; that in December, 1936, she entered the hospital at Ann Arbor and had an operation on the right ankle and remained there 12 days; and that she is permanently injured and suffers great pain and gets about by the aid of crutches and a steel brace on her right foot, ankle and leg.
The cause came on for trial, was submitted to a jury which brought in a verdict for plaintiff in the sum of $8,000. During the progress of the trial and at the close of plaintiff's proofs the defendants made a motion for a directed verdict on the ground that plaintiff was guilty of contributory negligence. This motion was renewed at the close of all testimony and was denied by the trial judge. Defendants appeal.
Defendants list 42 claimed errors in stating reasons and grounds of appeal. The assignments of error may be grouped as follows: that the driver of the truck was not negligent in his operation of the same; that plaintiff was guilty of contributory negligence; that the trial court erred in admitting certain evidence; that the trial court was in error in his charge to the jury; and that the verdict was excessive.
Defendants contend that the trial court was in error in giving the following instruction to the jury:
"Another statute of this State reads as follows:
" 'Any person who drives any vehicle upon the highway carelessly or heedlessly, with a wilful or wanton disregard of the rights or safety of others, or without due caution or circumspection, and at a speed, or in a manner so as to endanger or be liable to endanger any person or property, shall be guilty of reckless driving.'*
"That is from the criminal statutes in the State. The plaintiff does not charge the defendant in this case with wilfully or wantonly driving this car in a negligent manner." *Page 600
The purpose of an instruction is to advise the jury as to the law pertaining to the facts in the particular case; and it is the duty of the jury to accept and apply the instructions given by the trial judge.
We must assume that the members of the jury made some application of the above instruction. The instruction should not have been given. It has no application in a civil suit. It relates solely to a criminal proceeding. It could mislead a jury into thinking that defendant driver was charged with driving in such a manner as to bring him into purview of the criminal statutes. Such an instruction was prejudicial and its possible effect was not cured by other instructions given.
In view of our determination of this question, we find it unnecessary to decide other questions raised. The judgment of the trial court should be reversed and a new trial granted. Defendants should recover costs.
WIEST, C.J., concurred with SHARPE, J.
* See 1 Comp. Laws 1929, § 4696 (Stat. Ann. § 9.1564). — REPORTER. *Page 601