
    BLASDELL v. WOOLEY.
    Motor Vehicles — Negligence—Trial—Instructions.
    Where, in action for personal injuries to boy caused when he was struck by automobile, boy’s corroborated testimony that, when struck, he was standing with one foot on curb with tricycle or scooter between his legs was controverted by driver of automobile, who claimed that, when struck, boy was riding and darted out of alley directly in path of car, issue of fact was presented which should have been submitted to jury-under proper instructions, and trial court was in error in instructing jury that there was no proof of “any failure of duty” on driver’s part.
    Error to Genesee; Brennan (Fred W.), J.
    Submitted June 5, 1929.
    (Docket No. 48, Calendar No. 34,281.)
    Decided October 7, 1929.
    Case by Merlin Blasdell, an infant, by next friend, against Otto G. Wooley and another for personal injuries. Judgment for defendants. Plaintiff brings error.
    Reversed.
    
      C. A. Withey, for appellant.
    
      Millard <& Roberts, for appellees.
   Sharpe, J.

On review of this case after a former trial, the judgment entered on a directed verdict for defendants was reversed and a new trial granted (243 Mich. 3). It has been tried again, resulting in a verdict and judgment in favor of the defendants. Plaintiff seeks review by writ of error.

At the request of defendants ’ counsel, the court instructed .the jury as follows:

“I charge you, ladies and gentlemen of the jury, that the plaintiff has failed to prove that there was any excessive speed on the part of the defendant; that they have failed to prove that there was any failure of duty on the part-of the defendant, and before you can assess damages or find the defendant guilty, you must put your finger upon some definite act or omission which constitutes negligence upon the part of the defendants.”

The plaintiff, Merlin Blasdell, testified that at the time he was struck by the car driven by Mrs. Wooley he was standing with one foot on the curb and one on the pavement, with the tricycle or scooter between his legs. In this he was corroborated by the testimony of George Willis, the boy who was with him. Both so testified at the former trial, and this court held that, in view of this testimony, it was error to direct a verdict- for the defendants. If believed by the jury, it certainly tended to establish negligence on the part of Mrs. Wooley in operating the car which she was driving. It cannot be said as a matter of law that there was no proof of “any failure of duty” on her part. It is her claim, as before, that the boy was riding the scooter and darted out of an alley directly in the path of her car. A question of fact was thus presented, which should have been submitted to the jury under proper instructions.

The judgment is reversed and set aside and a new trial granted, with costs to plaintiff.

North, C. J., and Fead, Wiest, Clark, McDonald, and Potter, JJ., concurred. The late justice Fellows took no part in this decision.  