*1 TERM, 1942. APRIL AYERS v. ANDARY. Negligence Intersections—Contributory 1. —Dis- Automobiles — Speed. tance — city approaching Plaintiff an of streets who motorist approaching observes defendant motorist same intersection right proper from as to must not make possible distance defendant’s car from collision is judgment of its but also make some observation and being guilty approximate in order to avoid held contributory negligence as a matter law. Negligence Intersections—-Contributory 2. Same — —Burden Proof. fleeting glance More than a at a ear same inter- necessary if avoid section as he seeks to the burden contributory negligence. Intersections—Contributory Negligence. 3. Same — One is not who an free observes coming proceeds Automobile on street and then giving oneoming to cross without heed to the vehicle until the instant before or the time of collision. Contributory Negligence Imputed — — — 4. Same Intersections Negligence. injuries In personal by easterly action for passenger in driven paved against car on 24 proceeding feet wide motorist paved injuries for north on street 30 feet wide suffered plaintiff when the two cars collided at two intersection of city streets, through neither of which was a street at place, plaintiff’s driver, intersection, about to enter who saw defendant 150 about 125 or feet south and continued into intersection at increased to 15 or 20 was, guilty miles an hour law, as a matter of negligence imputable plaintiff. JJ., dissenting. Bushnell, Starr Contributory negligence, Restatement, Torts, see 475. That § opportunities reasonable man must coordinate his faculties perception intelligence judgment, reasonable see Restate- ment, Torts, 289 and comments. § jury Punction question contributory negligence, of court and Restatement, Torts, (a). see and comment §476 imputed negligence Restatement rule on Restatement, found at Torts, 490, is not accord with law. § (418) W.), Ingham; (Leland Appeal Carr Sub- January (Docket 39, No. Calendar 1942. 14, mitted *2 April 41,811.) 1942. 15, No. Decided against Andary by Ayers Ruth N. James A. Case injuries personal in a collision between for sustained plaintiff. for and automobiles. Verdict appeals. Reversed. Defendant plaintiff. Warner, Fred L. Eger Kelley,
Kelley, & for defendant. (dissenting) This is a inter- street Bushnell, section automobile collision case. The chief issue is: Russell Clements, Was G-. the driver of car the plaintiff Ayers guest pas- in which Ruth N. awas senger, guilty mat- as a judge question ter of law? trial submitted the jury finding the the de- was adverse the A. Jacob fendant, city Ayers, the
Plaintiff is wife Clifford of the Lansing. Sunday, August On 4, 1940, Clements city wife, who live the were Detroit, visiting Ayers at home. After Mrs. dinner, Ayers daughters got and Mrs. Clements and their Ayers’ daughter into the Clements’ car to take the daughter to work and the Clements’ to visit friends. returning trip from While this the Clements’ car approached Logan street west on Oakland Andary’s At street. the same time defendant was Oakland street from the south on Logan street. On the southwest corner inter- this a section church and a neither tree, of which oR Saginaw structs the view At south. Logan streets, two blocks south of the scene of light, Logan is a traffic nor accident, but neither they a Oakland is street where intersect. The day bright pavement dry. and clear and the driver of the car in
Clements, riding, he reached that, as testified a car intersection, he noticed away, no and there was 125 to about south he He said from the other direction. traffic hour as he five miles an down about slowed proceeded proached Logan into street, and per had hour, 15 miles at about at to 20 miles hour of about 18 attained way impact. got half he about the time of "When Andary again he he saw across said traveling away, and time 35 feet this about car, Realizing of at least miles an hour. his car inevitable, an accident was he swerved that to the left. According when his car Clements, through way the intersection two-thirds Andary car in back of the front was struck *3 near-by and he thrown from his car onto a seat, stop on the The Clements car came to a side- lawn. hydrant a is walk on north side of fire and on the north located between the curb sidewalk 40 feet east of the east side of Oakland about street Logan line of curb street. Andary going
Defendant that he testified Logan north on home street to his on Gflenrosestreet stopped light, had for a red where he turned Saginaw Logan. approached As onto he Oak- ways any street he looked land both and did not see driving other automobile. He he said was his right car to of of at the center approximately hour. he miles When reached again the intersection of Oakland street he looked nothing approaching saw and he from the east but, coming to west, looked he saw a Ford car him towards his left .on Oakland. he He said on slammed his brakes but was unable avoid collision. After the accident car came to an im- slightly right mediate in the intersection to the facing slightly southeast v. conflicting testimony The record contains other respect various distances estimates testimony speed, corroborating support- and there is ing parties. contentions both have held in a
We number cases contribu- generally tory negligence question of is fact jury, justify holding order to that, contributory negligence as a matter law, evidence be such that all reasonable minds should Detroit should reach the same conclusion. Golob v. Railway, Canfield, v. 201; United Mich. Adams Thompson Michigan Co., 666; v. Cab Thompson In Mich. 370. said: Case court lay impossibility precise “It is down rules by negligence. may which we measure all acts of necessity, must, Some cases stand or fall do, acts, their own facts. What one does or fails to
as relates circumstances under which he applied.”
is the test be conclusively Defendant contends that the evidence shows that Clements either made no be- crossing fore or, the street took best, a fleet- ing glance in the direction defendant’s car. See Linderman, Nelson 288 Mich. 186. However, we justify find sufficient evidence in the record to jury’s findings proper that Clements made obser- vations.
Appellant also no contends there evidence *4 jury find could that Clements formed a belief it that safe for him was to cross street observing after car, defendant’s and that forma- tion a reasonable belief that he could cross safety negative in was essential to con- tributory negligence. Hayes, Kerr See 19. expressly
The record not does that Clements show that he formed stated a belief or reached such such observing
a from tbe fact that after conclusion, but, proceed he did defendant’s car across intersec- jury properly he could that tion, infer formed not such a belief. It is unreasonable conclude that safety in drive an intersection one can across from 125 to when the nearest car is away. 150feet physical attempt make no to harmonize
We expect lay be we cannot witnesses to facts because mathematically exact in their estimates distances speeds interpretation a of such reasonable testimony say permitted. be It must is sufficient testimony jury that the find from that could happened substantially by plain- accident claimed as tiff. complains
Appellant charge, in the as to errors entirety charge reading but a in its shows theory fairly presented the case was jury. to the judgment upon verdict of the entered
jury appellee. should be with costs affirmed, J., concurred J.
Starr, Bushnell, clearly the record before On us North, pears 'plaintiff in the driver of the car which riding guilty contributory negligence a matter of and such law; imputable plaintiff. for Defendant’s motions judgment for directed verdict and later his motion notwithstanding should been verdict have granted. recqrd On I in affirm- such cannot concur plaintiff. ance of proceed- driver, Clements, Russell Plaintiff’s easterly paved ing an on a street which direction driving in a 24 feet wide. Defendant was paved northerly direction The accident the curbs. which was 30 between *5 423 pleasant happened day, in the afternoon of a the pavements dry, light, the traffic was and no were distracting present were at circumstances the time of the accident. Plaintiff’s driver familiar was with having formerly locality, neighbor- lived the right angles, hood. The at two streets intersect approached the two vehicles intersection there “nothing at was all” obstruct the view of the respective drivers. Neither of these streets awas ap- street. Plaintiff’s driver down slowed proximately entering 5 hour miles an before portion traveled of the street, and at that time he saw defendant’s car 125 to 150 south intersection. Plaintiff’s proceeded driver and increased his rate of per possibly 15 hour, miles or 20 miles at the point impact. Upon making second right just plain- to his before the instant of collision again tiff’s driver observed car proaching according plaintiff’s and, witnesses, traveling “60 least miles an hour.” How- witnesses for ever, defendant testified that defend- speed, ant’s at a slower rate they approached to miles hour. As intersection each the drivers of the autos involved traveling in the accident saw the other vehicle to- Notwithstanding wards intersection. this each proceeded impact exactly of the consequences which should have been foreseen both them. practically
It is true that testified at the riding entering time car in which she portion the traveled street she observed “perhaps 125 feet” defendant’s car south judge while she was not able to enough “it car, of defendant’s seemed far inferring plaintiff’s away,” and thus driver *6 justified proceeding in across the intersection nothing plaintiff because, testified: “There was (Andary) speed the the car at time to about of your Apparently (her) attention.” the case attract sought to made one wherein or her be is judg- formed rational observation, driver made an proceed, mistaken; ment to but was was safe urged neg- therefore it ligence of is the issue jury. may escape the was for the One not consequences negligence of his own a claim such theory physical or in a case facts con- where all clusively path by proceeding into establish oncoming plaintiff’s of an automobile driver was taking a chance which no in exercise of ordi- one nary care caution take. should It overtaxes credulity physical one’s under facts, belies of to conclude that these case, circumstances approaching point two driven vehicles were except negligent. of collision each the drivers of fair and reasonable construction that possible place upon it is the record us before just plaintiff’s that while driver was about to enter the intersection street he slackened speed of his car about 5 miles made an hour, right observation and saw defendant’s car bis approaching at a of 125 to feet distance south any intersection; of the far as but so disclosed testimony in the case he no observation made speed traveling. Touch- rate of defendant’s car was ing phase plaintiff’s driver testi- this case fied: you Andary’s Mr. car “Q. observed "When you travelling
proaching, that car did, if you? than three times as fast as more up time— “A. “Q. I the first slowed "When Just a minute— n got say I have I “A. don’t know.” approx- and when defendant’s car was Later, impact imately 30 from the and after it plaintiff’s collision, too to avoid the driver late according made a second observation testi- mony car was then hour;” Obviously “at an least miles by plaintiff’s observation made driver of de- the first fleeting than fendant’s car amounted to no more glance oncoming forming any car without whatever as to the rate of at which approaching. it was Under the circumstances this of an case proximity any giving *7 close without consideration approaching to the rate of it quite proper futile. If one make a is to oncoming of an car under the circumstances case, instant the observation must include not point the distance the car is "from the possible but collision also some observation and approximate speed. plaintiff’s of its This failed In Linderman, driver to do. Nelson v. 288 Mich. we 186, said: plaintiff
“In the at bar, case had to travel dis- approximately get tance of place tance of 35 feet in order safety. He could within a .car dis- 4 or 5 feet. Under the in circumstances plaintiff any case, this failure driver’s to make ob- traveling servations while he was 25 last precludes recovery. Something more than a fleet- ing glance necessary at an car is if seeks avoid the burden of ’’ negligence. In the recent case Wiedman, v. 291 Sonfilian Mich. we 697, said: many “In cases we have held that one is not free who observes an auto- 301
426 coming street and then further heed to the mobile proceeds on tbe giving without cross oncoming vehicle until the instant before or at the time collision, Ormiston, 600; Smith v. Mich. Koehler v. Mich. 593.” Thom, distracting not a This is case wherein circum- driving stances, adverse conditions, unforeseen or unanticipated conditions or circumstances resulted in a collision. it Instead, is a case wherein two daylight, in drivers broad with unobstructed view loiowledge of each approach, each with other, of the other’s disregard safety in reckless of their own safety proceeded and the in the others vehicle, disastrous results to the of collision. negligent. Each driver was expected, vary as is to be While, facts controlling legal those of prin the instant case, the ciple application and its in this field of the law have many been adhered to of our so decisions would following be futile among to cite all of them. The are McKelvey; the more recent: v. Hill, 16; Mich. Carey Smith v. Wassink, 639; DeRose, v. Creamery 321; Mich. Geisin v. Rebel Co., 286 supra; 635; Mich. Nelson v. Linderman, Brenner Dykstra, v. 301; Mich. v. Wiedman, Sonfilian supra; Paquette, Huber 293 Mich. 370; Plashett *8 County v. Van Ruren Commission, Road Railey 54; Pierson v. Co., Products Mich 243; Taylor v. Williamson, 298 Mich. 251. judgment entered in the circuit court is re
versed and non entered on motion veredicto, obstante of both costs courts to defendant. Chandler, C. J., and Sharpe, Boyles, Btttzel,
JJ., concurred with did not J., sit. North, Wiest,