danger, defendant called out to him three times to "look out" and swung the car to the left far enough to safely pass behind him, and would have done so had he stood still or continued walking ahead. Defendant supposed he had passed safely until his wife drew his attention to the matter, when he looked round and immediately stopped.

While there is some confusion as to the details, the lengthy testimony of defendant and his witnesses is to the effect, briefly stated, that they saw plaintiff in the road as they were approaching some distance ahead as he moved away from Pearson's wagon to cross the road; that the horn was sounded but he did not seem to hear it, and when the automobile was within 10 to 20 feet of him he was directly in its path in the road, in a position of danger if he remained there, and the automobile continued on; that he seemed to be slightly hesitating and confused, and defendant shouted at him as they came closer, running not over five or six miles an hour; that ample notice had been given of their approach. It was daylight and the car was under complete control. As the car came near to plaintiff, defendant steered it in a gradual curve to the left sufficient to pass plaintiff safely, and did pass him, so far as then appeared, until he stepped backward just at that instant far enough for the rear wheel to strike his foot or ankle and inflict the injury complained of, which is imputable entirely to his own. negligence and not that of defendant.

Defendant's numerous assignments of error are concentrated into the following reasons why the judgment should be reversed and a new trial granted:

(1) The verdict is contrary to the overwhelming weight of evidence.

(2) That the defendant was guilty of no conduct constituting actionable negligence.

(3) That the plaintiff was guilty of contributory negligence precluding a recovery.

(4) That the court erred in admitting and excluding certain testimony, in certain parts of his charge, and in refusing defendant a new trial.

(5) That the damages are excessive in amount.

The claim that, if the case was in any aspect to be submitted to the jury, excessive damages were awarded is based on the contention that all the pain, suffering, and ill effect's resulting from the injury were caused by plaintiff's refusal to permit a physician at Vernon to properly attend to him and administer first aid; and the testimony of witnesses that he was able to walk on the limb shortly after the accident, that he was seen to get out of the buggy and walk when he arrived at Vernon that evening, and the testimony of a physician, called by defendant, that there had not been any fracture, that an examination failed to disclose any callous, such as fractures cause, that it looked to him as if plaintiff had suffered a "sprain of the ankle," that he did not regard the injury as permanent, and that the treatment, or neglect of treatment, shown by certain of the evidence was injurious, would increase the pain and suffering and retard recovery. The evidence discloses that immediately after the accident plaintiff was taken to a physician at Vernon where his limb was hastily examined and bandaged, but he was suffering and claimed that the physician hurt him unduly in handling the limb, and did not permit a very thorough examination. The testimony on that subject falls far short of showing conclusively that plaintiff aggravated his injuries by refusing to submit to proper treatment and is himself responsible for the suffering and ill effects of the injury.

There is testimony that soon after plaintiff left the physician's office in Vernon he took a train to Lapeer and was taken from there to his home in an automobile, where he arrived about midnight, and was put to bed.

175 MICH.-21.

A physician was called the next morning who cared for and treated him. This physician took an X-ray photograph of the injured parts. He produced it at the trial, and with it described the injury, stating he found two bones fractured, bruises, and ligaments ruptured, swelling and discoloration half way up to the knee. He put the limb in a plaster cast and treated it for some time; that plaintiff suffered from the injury; that he could not say the injury would be permanent, but would expect it to trouble a man of plaintiff's age a long time. Plaintiff testified to severe pain and suffering, described the nature and extent of his injury as he experienced it, told of the continuance of the pain, of inability to freely use the limb and to do his work. The injured ankle was exhibited to the jury; other witnesses corroborated portions of plaintiff's testimony as to the nature, extent, and permanence of the injury. There was a marked conflict of testimony; but if the jury believed the testimony of plaintiff and his witnesses (and the credibility of witnesses was for them to determine) the verdict was far from excessive. Kathmeyer v. Mehl (N. J. Sup.), 60 Atl. 40.

The claim that defendant was guilty of no conduct constituting actionable negligence cannot be disposed of as a proposition of law. There is evidence in the case tending to show that he was driving his car at an excessive rate of speed; that he approached without giving proper warning; that he saw plaintiff diagonally crossing the highway between the two conveyances, with his back partially towards the car and in the direct path of it, apparently hesitating, as if confused. Seeing this, and seeing, as he himself states, that the horse Mrs. Pearson was driving was restless and excited, he drove right on at a rate of five or six miles an hour as he states, and at a rapid speed as others testify, making a curve to miss plaintiff, when, according to his own testimony, he had his

car under complete control and could have stopped it instantly. Irrespective of any statutory liability, his negligence was fairly put in issue by the testimony, as a question of fact for the jury.

The reciprocal rights and duties of a pedestrian and driver of an automobile are clearly stated with many citations in Hennessey v. Taylor, 189 Mass. 583 (76 N. E. 224, 3 L. R. A. [N. S.] 345, 4 Am. & Eng. Ann. Cas. 396), which is well in point here. It is there said that "although each had the right to pass and repass, neither could so negligently exercise this right as to injure the other"; and, the parties having come into collision, the usual questions of due care on the part of the plaintiff and negligence of the defendant are ordinarily issues of fact for the jury. Such was clearly the case as to the defendant under the conflicting testimony appearing in this record.

It is well settled by abundant authority that it is negligence for the driver of a conveyance, having ample space to pass a pedestrian on a highway, to so guide his vehicle as to strike the latter in passing. Boick v. Bissell, 80 Mich. 260 (45 N. W. 55); Lazell v. Kapp, 83 Mich. 36 (46 N. W. 1028); Graham v. Evening Press Co., 135 Mich. 298 (97 N. W. 697); Gerhard v. Motor Co., 155 Mich. 618 (119 N. W. 904, 20 L. R. A. [N. S.] 232); Navailles v. Dielmann, 124 La. 421 (50 South. 449, 134 Am. St. Rep. 508); Weil v. Kreutzer, 134 Ky. 563 (121 S. W. 471, 24 L. R. A. [N. S.] 557). Diamond v. Cowles, 174 Fed. 571, 98 C. C. A. 417, is in point. There defendant, driving an automobile, struck plaintiff while approaching him from the rear, walking across the street diagonally; there was evidence that the accident could have been avoided by defendant slackening his speed or swerving to the right, and also conflicting testimony as to whether plaintiff was still continuing on his course, or whether looking round and seeing the car he step

ped back in front of it, it was held that the question of defendant's negligence was for the jury.

It is urged that plaintiff's contributory negligence is so conclusively shown as to make it imperative for the court to hold, as a matter of law, that it precludes him from recovery. This claim is chiefly based on the assumption that, as a physical fact, he would not, and could not, have been hit by the rear wheel of the car, as it is undisputed he was, after the front wheel cleared him, unless he himself stepped back or turned against the car after the front wheel had passed. Plaintiff and others testify positively that he did not. Was it a physical impossibility for him to have been injured as he was, if he did not? He had a right to be in the highway and to walk across it. He was not bound to be constantly on the lookout to ascertain if an automobile was approaching him, under penalty that, failing to do so and he was injured, his negligence must be conclusively presumed. He testifies that he did not hear or see defendant's car and had no knowledge of its approach until it struck him. He was nearly across the traveled portion of the road when struck. Defendant testifies that in the direct line he was driving he would have run over plaintiff, and that he swerved to the left to pass him. It is shown that the front and rear wheels of the car did not track at that point, but made separate marks on the ground at the place of collision. It can well be argued, as a physical fact, that turning quickly to the left and back to the right in making a curve around plaintiff would cause the rear wheel to travel farther to the right at the point of collision. His physician, describing the injury, said that there was a rubbing of the skin produced by a blow applied to the outer back part of the ankle a little above the tendon achilles, about two inches wide and of irregular shape, indicating plaintiff was, when struck, facing from the car, with his right leg nearest to it and at an angle. We