2 N.W.2d 802 | Mich. | 1942
Plaintiff brought suit against defendant to recover for injuries sustained through the negligence of the latter's son-in-law while driving the automobile of defendant with his implied consent. The accident occurred on December 8, 1939, at approximately 6:10 p.m. just outside the city limits of the city of Kalamazoo on US-12A, also known as East Michigan avenue. The highway curves and does not run in a straight direction but it does run approximately east and west in the immediate vicinity of the place where the accident occurred. Defendant's driver was proceeding in a westerly direction. The paved portion of the road was divided into four lanes of a width of 10 feet each. The southerly two were used for easterly traffic and the northerly two for that going west. We shall refer to the most northerly lane as the outer lane and the adjoining one abutting the center line as the inner lane. There is no claim that defendant did not remain on the northerly half of the highway, but it is claimed that, while going at the rate of from 50 to 55 miles an hour, he steered his car from the inner to the outer lane where plaintiff was walking, while crossing the road. Plaintiff, 68 years of age, at the time of the accident was a night watchman at the Kalamazoo Paper Company, where he had been employed for 32 years and whose plant was on the south side of the road. He had been in the habit of crossing the highway very frequently both in daytime and at night. He knew the traffic conditions. On the evening of the accident, he started to cross the highway in order to go to a *650 restaurant located on the north side. The weather was clear and the pavement dry. Plaintiff claims that upon entering the pavement from the south side of the road, he looked in both directions and saw no approaching traffic; that when he reached the center of the road, he again looked and saw nothing; that from that time on he kept looking to the right but saw no approaching car. Notwithstanding this, however, he was struck by the right side of defendant's car while it was speeding in a westerly direction and while turning in from the inner lane to the outer lane. The only damage to the car was to the door handle. Plaintiff's injuries were so serious that they necessitated two skull operations and long hospitalization.
It was shown that defendant's car had a dirty windshield obscuring proper vision and that the car was driven at an unlawful rate of speed under the circumstances. Defendant disclaims liability, particularly on the ground that plaintiff was guilty of contributory negligence. No question is raised as to the size of the $6,000 verdict.
Defendant calls attention to numerous cases involving accidents occurring either in the day or nighttime, and in which we have held plaintiff ordinarily may not recover if he steps into the path of an oncoming car coming in a straight direction. Under ordinary conditions, it is the rule that the pedestrian must look and keep on looking, see what it is plain to see, and thus avoid being struck by a car coming in a straight line towards him.Haley v. Grosse Ile Rapid Transit Co.,
The testimony on behalf of defendant indicated that the crest of the 5-foot grade of pavement was from 300 to 350 feet east of the point of impact and from such distance on the pavement curved to the north.
The further question arises whether, if plaintiff had looked and seen what it is claimed he should have seen, would he not have been justified in continuing across the road under the circumstances? Did his alleged negligence contribute to the accident? The Westbrook car was 300 feet away at the time defendant's car passed. It must have taken some time and distance for defendant's car to pass the Westbrook car. The query arises whether under the conditions a pedestrian is guilty of contributory negligence when he does not walk into the straight pathway of a car, but the car, instead of going in a straight direction, slants off and goes into the pathway of the pedestrian who has almost crossed the road. Assuming that plaintiff should have seen or did see the Westbrook car when it was 300 feet away, and had also seen defendant's car passing to the left and south of the Westbrook car, we do not believe that reasonable minds would all agree that plaintiff was negligent in believing that he had ample time in which to reach the northern edge of the road. Although defendant's driver would ordinarily have the right to pass another car going in the same direction by going to its left and then returning to the lane nearest the right curb, would not a pedestrian, under the circumstances of this case, have been *653 justified in believing that the driver of defendant's car would observe such pedestrian, who had almost reached the right curb, and wait until after passing such pedestrian before returning to the right lane? Not all reasonable minds would agree that plaintiff's failure to see was a contributing cause of the accident. Close questions are presented upon which reasonable minds may differ. Therefore, it was properly submitted to the jury.
Judgment affirmed, with costs to plaintiff.
CHANDLER, C.J., and BOYLES, NORTH, STARR, BUSHNELL, and SHARPE, JJ., concurred. WIEST, J., did not sit.