I am not in accord with Mr. Justice BUSHNELL'S opinion.
He says:
"The evidence presented by plaintiff was sufficient to take the question of his decedent's due care to the jury. There was evidence as to skid marks, the damage to defendant Valenti's car, the rate of speed at which defendant LaFreniere was driving, the nature and character of the accident, and the atmospheric conditions surrounding it."
The above quoted portion of the opinion has a direct bearing upon the negligence of defendant but, if plaintiff is to recover, it must be shown that plaintiff's decedent was free from contributory negligence. This is so because of the fact that there was at least one eyewitness to the accident. SeeFoote v. Huelster, 272 Mich. 194; Collar v. Maycroft, 274 Mich. 376; and Faustman v. Hewitt, 274 Mich. 458.
At the close of plaintiff's testimony, defendant moved for a directed verdict. At this point the only testimony offered by plaintiff on the question of liability was statements made by the defendant LaFreniere and the witness, Waite. The substance of this testimony was that defendant's car was being driven at a speed of 30 to 35 miles per hour, the *Page 14 night was foggy, and that LaFreniere did not see plaintiff's decedent until he (plaintiff's decedent) hit the windshield.
In Neeb v. Jacobson, 245 Mich. 678, we said:
"Plaintiff was not struck by the front of the car, but apparently by its side. If plaintiff failed to look to see if cars were coming, she was guilty of contributory negligence. If she looked and failed to see what was in plain sight, she was guilty of contributory negligence. If she went across the street heedlessly, without knowing where she was, and ran into defendant's automobile, she was guilty of contributory negligence. If she did not listen or did not hear defendant's automobile by reason of carelessness and inattention, she was guilty of contributory negligence."
Whether plaintiff's decedent stumbled into the car from the side of the highway or, while walking thereon, paid no attention to the oncoming car, is not clearly shown by the record, but in either event there was a failure to use ordinary care, and such failure precludes recovery.
The judgment of the trial court should be reversed without a new trial. Defendants may recover costs.
WIEST, C.J., and POTTER, J., concurred with SHARPE, J. BUTZEL, J., concurred in the result. *Page 15