KRAUSE v. RYAN
Nos. 46,200, 46,201
Supreme Court of Michigan
December 28, 1955
344 Mich. 428
Decree below reversed and set aside. A decree may enter here dismissing the bill of complaint. Under the noted circumstances of this appeal, no costs.
CARR, C. J., and BUTZEL, SMITH, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.
KRAUSE v. RYAN.
- AUTOMOBILES—INTERSECTIONS—THROUGH HIGHWAYS—STOPPING—CONTINUANCE OF OBSERVATION.
Judgments for plaintiffs, husband and his wife, are affirmed, where latter was an eastbound motorist on through highway and defendant a northbound motorist whom plaintiff motorist had observed approaching on a duly marked inferior road at speed of 45 to 50 miles an hour some 160 to 170 feet from the intersection while she was proceeding at speed of 30 miles an hour some 100 feet from the intersection and had neither stopped her car nor continued her observation of defendant.
- COSTS—CONSOLIDATED CASES.
Only 1 taxation of costs is permitted in consolidated cases.
CARR, C. J., and REID and DETHMERS, JJ., dissenting.
REFERENCES FOR POINTS IN HEADNOTES
[1] 5 Am Jur, Automobiles §§ 167, 297.
[2] 14 Am Jur, Costs § 71.
Separate actions of case by Frederick and Ruth Krause against Dale W. Ryan and Florence Ryan for damages arising from automobile collision. Cases consolidated for trial. Verdicts and judgments for plaintiffs. Defendants appeal. Affirmed.
van Benschoten & van Benschoten, for plaintiffs.
Burroughs & Milliken, for defendants.
SMITH, J. These 2 cases, which were consolidated for trial, arise out of an intersection collision at the junction of Bristol and Linden roads in Genesee county. In the one case, plaintiff Ruth Krause sought damages for the injuries she sustained and obtained a jury verdict in the sum of $6,700. In the other case, Frederick Krause, the husband of plaintiff Ruth Krause, obtained a verdict in the sum of $1,177.10, a judgment being entered in this amount for his expenses and loss of services.
About 5:45 o‘clock in the afternoon of February 20, 1953, Mrs. Krause was driving an automobile in an easterly direction on Bristol road. At the same time defendant Dale J. Ryan, who was 17 years old at the time, was driving his mother‘s automobile in a southerly direction on Linden road. Bristol is a through highway at its intersection with Linden road, stop signs being posted on Linden at the appropriate corners thereof. (
Plaintiff testified that, when approximately 450-500 feet from the intersection of Linden road, she reduced her speed from 50 to 30 miles per hour. At about 400 feet from the intersection she made observations right and left and saw no other cars approaching. She again looked to the left when approximately 100 feet from the intersection and observed defendants’ automobile about 160-170 feet from the intersection, proceeding at an estimated speed of 45 to 50 miles per hour. Assuming that the defendant would stop at the intersection and that he could do so, plaintiff did not look again until defendants’ automobile was practically upon her.
At the close of plaintiffs’ proofs, defendants made a motion for a directed verdict on the ground that plaintiff Ruth Krause was guilty of contributory negligence. Ruling on this motion was reserved.* It was renewed again at the conclusion of all the proofs and decision again was reserved.* After the jury‘s verdicts, defendants moved for judgment non obstante veredicto, which was subsequently denied. Appellants claim that under the facts plaintiff driver failed to show freedom from, and is guilty of, contributory negligence as a matter of law, and
The appellants stress our holding in Holley v. Farley, 289 Mich 676, which case also involved (at the intersection of an arterial and subordinate highway) an automobile collision. Verdict against the driver on the arterial highway was directed in the trial court and this Court upheld the direction on the ground of contributory negligence on the part of such driver. Appellants insist that our holding in the Holley Case justified a similar result in the case at bar.
The determination of this case requires our consideration of the rights and duties of an automobile driver upon an arterial highway as opposed to those of a driver upon an inferior or subordinate road. The former road, the arterial highway, is a highway designed to expedite the flow of traffic. Cars must of necessity move thereon in great volume and at relatively high speeds. Within the lives of many of us, travel thereon at speeds the maintenance of which, on a crowded highway, would once have been deemed negligence per se has become commonplace, nay required. As a consequence, the public authorities and the law have become properly solicitous of the arterial driver, driving at high speed a powerful machine in close proximity to others equally perilously engaged. Thus, the erection (as in the case at bar) of signs commanding all crossing traffic to come to a halt before venturing into the arterial road, and the judicial recognition, as in Arnold v. Krug, 279 Mich 702, 707, that the driver on an arterial highway has a right-of-way which is “something more than the privilege of going through the
The driver on the arterial, we have decided, is the favored driver. It is not necessary in approaching an intersection, as we said in Arnold v. Krug, supra, 707, that he “have his car under such control * * * that he may stop at once and avoid collision with persons who may illegally come into his path.” Lacking notice otherwise, he may assume that others using the highways will comply with the rules of the road and properly posted signs and he is not guilty of contributory negligence in acting upon such assumption. It should not, however, be assumed from the foregoing that he may proceed blindly upon the arterial, secure in the supposition that he can do no wrong. He must remain alert to the hazards surrounding him and with which he is confronting others. We do not propose to attempt an enumeration of the various actions required of him. So far as the question in this case is concerned, he is undoubtedly required to make observation of the traffic apparently to cross his path from intersecting streets and to act reasonably in the light of such observation. Thus we reach the point of divergence between this case and that urged upon us by appellants, Holley v. Farley, supra. In the Holley Case the favored driver failed completely in this essential duty. We need not speculate as to what he might have seen had he observed and what he might then, with such information, have done as a reasonably prudent man. Cases there may well be in which even the favored driver may be negligent as a matter of law, as where he takes no action for his own safety after having observed a car approaching on a subordinate road, erratically driven, at a grossly excessive rate of speed, and threatening an imminent crossing of his path. In this extremity he may no longer rely on his favored status. He
In so doing, do we repudiate the established case law of this State? We hold not. The answer to the cases cited by our Brother DETHMERS in support of his position is that the case law evolved in other fact situations (collisions at intersections unguarded by the peremptory posted command to stop, pedestrian cases, and the like) does not here control. We recognize, of course, that we ever seek certainty in the law, groping for that universal rule which we have but to discover and enunciate in order that justice may follow the wrong as the day the night. Have we found it in the “rule,” applicable in all cases involving carelessness, that negligence is a want of that care which reasonable men would exercise under the same or similar circumstances? Having this rule, can we cite broadly from one negligence situation to another? We fear not. The field of negligence is too broad. We find within it all kinds and conditions of men, from the surgeon at the
It would serve no useful purpose and unnecessarily prolong this decision were we to parse the remainder of our Brother‘s opinion. We might discuss in detail just what we decided in Arnold v. Krug, supra, what we said heretofore concerning it, and whether that part of the Arnold opinion (p 708) saying, “he (the favored driver) must keep such lookout ahead and to the sides and down intersecting highways as a reasonably prudent person would do in order to discover possible danger and must act carefully upon the existing conditions,” was discussion pertinent to the driver‘s alleged duty to slow down as he approached the intersection. It seems, however, sufficient to observe that the precise holding was that the defendant on the trunk-line highway was free of actionable negligence “as a matter of fact and law.” Justice DETHMERS’ cited case of Wehling v. Linder, 248 Mich 241, a 1929 case which involved a driver on a street given “the right-of-way” by city ordinance, might be discussed at length,
The fact of the matter is that we have an acute problem on our highways and it is getting more acute with every newly-built turnpike, every newly-constructed expressway. If we reach, with respect to it, a reasonably sound solution we will have done more than passing well, and the problem of the pedestrian, of collisions at unguarded intersections, and of the myriad other traffic situations may well wait their day before us. It is not today. Today‘s problem is this: What constitutes negligent driving for a driver on a throughway when he sees approaching a driver on a subordinate side road? Much could be said for the solution reached by Maryland, that the arterial driver has an absolute right-of-way, provided he is driving in a lawful manner. See Greenfeld v. Hook, 177 Md 116 (8 A2d 888, 136 ALR 1485); see, also, Morris v. Bloomgren, 127 Ohio St 147 (187 NE 2, 89 ALR 831). It is our opinion, however, that at this time the question of due care should normally remain a jury question. Why? For answer we turn to Mr. Justice Holmes, in The Common Law, p 150:
“The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see
why the jury should be consulted with regard to them. They are, however, facts of a special and peculiar function. Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct.”
We reject, then, the theory that the arterial driver who has made one observation of the car burdened with the peremptory command to stop, has thereupon determined that it is safe to proceed, has made another within a hundred feet of the intersection and has thereupon reached a like decision, is negligent as a matter of law in not making additional observations. When is the observational duty discharged? At 75 feet? At 50 feet? Must there be continuous observation? Our rules of conduct must be both realistic and workable. If the driver on today‘s arterial highway remains alert to the hazard immediately ahead of him, to his right, to his left, and does not fail to keep constantly in mind the driver crowding him from the rear, he is doing a reasonably good job of driving. Whether or not he should, in addition to these tasks of considerable magnitude, also keep under more or less continuous observation the driver approaching the arterial from some side road is, under our present law, a question for the jury. It is their function, as stated by Mr. Justice Holmes, to suggest a rule of conduct based on their experience with respect to the dangerous character of such conduct. Our cases there leave it and we should not, in the present state of traffic, disturb. The Maryland and Ohio solutions may some day come to Michigan. That day is not now. But we should not, in grasping at the shadow of universality, of certainty in the law, lose our grip on reality. The reality is that our through highways carry vast amounts of traffic at high speeds and demand the utmost from a driver thereon. In these sur
The judgments in both cases are affirmed. Plaintiffs shall recover costs, but only 1 taxation is permitted in consolidated cases.
BUTZEL, SHARPE, and KELLY, JJ., concurred with SMITH, J.
BOYLES, J., concurred in affirmance.
DETHMERS, J. (dissenting). I do not concur in affirmance. Plaintiff‘s failure to “look again” while driving the last 100 feet to the point of impact constituted contributory negligence as a matter of law, under our previous decisions, barring the right to recover. In Holley v. Farley, 289 Mich 676, plaintiff‘s driver was travelling on a through highway at 30 miles per hour; when 150 feet from the intersection he looked to his right, but his view was obstructed and he did not look in that direction again until an instant before the collision, although one of his passengers, when they were 80 feet from the center of the intersection, saw defendant‘s automobile coming from the right 125 feet from the center of the intersection, travelling at 45 miles per hour; defendant failed to stop for the stop sign. This Court held plaintiff‘s driver guilty of contributory negligence as a matter of law for failure to maintain a reasonable and proper lookout for approaching traffic. Mr. Justice SMITH would distinguish the instant case from Holley in that there the favored driver at no time observed defendant‘s approaching automobile (he looked when 150 feet from the intersection, but his view was obstructed),
“The principles there recognized and applied find support in the cases above cited, and are likewise in harmony with other recent decisions, among which are: Morse v. Bishop, 329 Mich 488; Zivas v. Jinkins, 329 Mich 659; Cioffari v. Blanchard, 330 Mich 518; Ludwick v. Hendricks, 335 Mich 633; Levine v. Schonborn, 336 Mich 312; Denman v. Youngblood, 337 Mich 383; MacKenzie v. Sternicki, 338 Mich 487; Letcher v. Robinson, 340 Mich 350.”
Challenged in the instant case is the trial court‘s denial of defendants’ motions for directed verdict and judgment non obstante veredicto. The precise question for our determination narrows down to whether plaintiff‘s failure to “look again” during the last 100 feet before collision gives rise to a question of fact or a question of law as to contributory negligence. Mr. Justice SMITH holds it to be a question of fact for the jury. I do not agree that Arnold v. Krug, 279 Mich 702, is authority for that view. In the first place, this Court did not hold in that
Also relied upon as holding that the question of plaintiff‘s contributory negligence in failing to maintain a proper lookout is one of fact for the jury are Breker v. Rosema, 301 Mich 685 (141 ALR 867), and cases therein cited. In Breker, plaintiff‘s driver, travelling the favored highway, suffered an accident-induced amnesia and because there was no eyewitness on the point or testimony to the contrary, this Court indulged the presumption that he had maintained a reasonable and proper lookout. Proceeding on the assumption that he had maintained such lookout and the presumption that he was thus free from contributory negligence in that respect, this Court held that whether he was guilty of contributory negligence by reason of his established acts or failures to act, other than those relating to making proper observation, as he approached and entered the intersection, presented a question of fact for the jury. This Court did not hold in that case that failure to look for a given distance presents a jury question of fact as to contributory negligence. The pertinent cases cited in Breker are Potter v. Felician Sisters Home for Orphans, 281 Mich 101; Campbell v. Osterland, 283 Mich 175; and Rife v. Colestock, 297 Mich 194. In Potter all occupants of both cars involved were killed by the accident or deceased at time of trial. Although this Court did not mention the presumption of freedom from contributory negligence on the part of plaintiff‘s driver, who was travelling on the favored highway, there was equally as much reason to do so as in Breker. This Court did say that there was no evidence that plaintiff‘s driver had proceeded heedlessly and stressed that the only evidence on that phase of the case was that she had swerved her car to the right just before the impact, indicating that this constituted evidence from which an inference might be drawn that she had made proper observation and exercised due care to avert the accident, thus leaving the question of her contributory negligence one of fact. In Campbell the favored driver testified that when he was some 100 feet from the intersection he observed that defendant‘s car had stopped for the through highway; and in Rife it was testified that defendant‘s car slowed down momentarily upon approaching the stop sign. Consequently, in both of those cases, as this Court observed in Rife, if plaintiff, on the favored highway, had looked he would have had reason to believe that he was being accorded the right-of-way and that he could proceed in safety; accordingly, a question of fact was presented in each as to whether plaintiff‘s failure to maintain a continuing lookout was a proximate cause of the accident rendering plaintiff guilty of contributory negligence. Those cases are not in point in the instant case where plaintiff admittedly did not look for the last 100 feet and there is nothing in the record to show, as in those cases, that a proper lookout would have proved unavailing to avert the accident. The burden
Our attentions are also directed by Mr. Justice SMITH to Marrs v. Taylor, 327 Mich 674; Trune v. Grahl, 337 Mich 659; and Soltar v. Anderson, 340 Mich 242. Marrs presented a disputed question of fact as to whether plaintiff‘s automobile, travelling on the favored highway, was struck in the intersection or, as plaintiff claimed, after it had passed through it. Under plaintiff‘s version of the facts the case called for application of the familiar rule that when the favored driver failed to maintain a proper lookout the question of whether that failure constituted contributory negligence is one of fact rather than law if the collision occurred in that part of the intersection which represented defendant‘s wrong side of the road or where plaintiff would not have expected defendant to drive even if he had seen him. Characteristic are the so-called “swerve” cases, in which, at the last moment before the collision, defendant swerved to his left side of the road. The question in such cases is not so much whether plaintiff‘s failure to look constituted negligence, but whether such negligence was “contributory“, that is, a proximate cause of the accident; and so it is that in Marrs this Court said (pp 677, 678), “reasonable minds may differ as to whether Mr. Marrs had made proper observations and, if not, whether such negligence, if any, contributed to the accident.” There is nothing in the case at bar to bring it within the “swerve” case exception. In Trune the defendant was on the favored highway. Plaintiff had the burden of showing negligence on defendant‘s part. There was no testimony that defendant had failed to maintain a proper lookout. This Court held in effect that failure of defendant to maintain a proper lookout could not be inferred from the mere fact that he failed to stop
Recognition of the fact that within the memories of most of us the numbers and speeds of automobiles have increased in fantastic proportions is scarcely persuasive of the conclusion that the need for maintenance of a proper lookout by drivers has decreased. While this Court did say in Arnold v. Krug, supra, 707, that, “The right-of-way accorded to a driver upon a trunk-line highway is something more than the privilege of going through the intersection in advance of a car which reaches it at the same time,” this Court has never held that that “something more” includes the right to proceed into and through the intersection without maintaining a proper lookout. The right-of-way is not an assurance of safety upon which one may absolutely rely, but, on the contrary, he must use due care for his own safety. Kerr v. Hayes, supra. As said in Kerns v. Lewis, 246 Mich 423, 428:
“While the law accords the right-of-way, it requires, as well, the exercise of at least ‘horse sense.’ The statute does not authorize one, in approaching a highway crossing, to assume that in all events he may proceed without looking, or, if unable to see, without exercising precaution commensurate with reasonable prudence.”
Lest the quoted language be thought to smack too much of the horse and buggy days with diminished applicability to the present motorized age, it may not be inappropriate to observe that there is an even greater urgency for the exercise of “horse sense,” for eternal vigilance and the maintenance of a constant lookout on the part of today‘s drivers of mechanized horsepower than in the days gone by when Old Dobbin was at least reputed to know the way home. A holding that the question of the contributory negligence of a plaintiff who, as here, proceeded for 100 feet without looking again, serene in the assumed assurance of safety afforded by the right-of-way, should be left to the speculations of a jury and escape being branded for what it is as a matter of law seems to me nothing less than an open invitation to recklessness and consequent disaster in a day when traffic and speed make a constant lookout a prime requisite to survival in the race of the quick and the dead.
In conclusion, it is to be noted that there is no allegation in the pleadings nor one shred of evidence in the record to suggest that the through highway on which plaintiff was travelling was a “high-speed, heavy-volume artery of traffic, known as the expressway” or that it was one of Michigan‘s “great expressways,” or a “turnpike.”
CARR, C. J., and REID, J., concurred with DETHMERS, J.
CLEMENTS v. CONSTANTINE.
- ACTION—SPLITTING CAUSE OF ACTION.
A cause of action that is single cannot be split and made the subject of several suits.
- SAME—SPLITTING CAUSE OF ACTION—JUDGMENT—RES JUDICATA.
Should there be a splitting of a cause of action and plaintiff proceed to judgment on the first case, his entire cause becomes merged therein and it is res judicata as to second action.
- SAME—CAUSE OF ACTION.
The term “cause of action” partakes of both procedure and substance.
- SAME—VEXATIOUS LITIGATION—FINALITY.
One suit which has given the plaintiff a reasonable chance to have a fair decision on the validity of his complaint should be sufficient, as the defendant has a right to be spared vexatious litigation and the State itself has an interest in the finality of litigation.
- COURTS—PROCEDURE—REMEDY.
All procedure is merely a methodical means whereby the court reaches out to restore rights and remedy wrongs and must never become more important than the purpose it seeks to accomplish.
REFERENCES FOR POINTS IN HEADNOTES
[1, 2, 4, 9] 1 Am Jur, Actions § 96 et seq.
[3] 1 Am Jur, Actions § 2.
[6-8] 30 Am Jur, Judgments § 172 et seq.
[6-8] Distinction between judgment as bar to cause of action and as estoppel as to particular fact. 88 ALR 574.