Steger v. Blanchard
86 N.W.2d 796
Mich.
1958
Check Treatment
*584 Black, J.

(after stating the facts, for reversal). Our text was written by Mr. Justice Cooley. We affirmed it most recently in Normand v. Thomas Theatre Corporation, 349 Mich 50, 59, as follows:

“As we have previously seen (Clark v. Shefferly, 346 Mich 332) the question of contributory negligence is usually judged, not alone by what the plaintiff did or did not do, but also by the conjoining facts pertaining to what in the way of lеgal duty the plaintiff had a right to expect of the defendant.”

The question before us, determinable as it should be from favorable-to-plaintiff view of the proof and legitimate inference from proоf, is whether this elderly schoolteacher’s failure to look again (and to act with reference to what she would have seen had she looked), after having assured herself that the way to her left was clear of oncoming traffic for approximately 300 feet, constituted contributory negligence as a matter of law. To determine it, we turn immediately to consideration of such duty or duties as were owing in the disclosed circumstances by defendant’s daughter. We do this since the prudence of the party injured — Mrs. Steger — must be estimated on motion for directed verdict in view of what she had a right to expect from the defendant’s said *585 daughter (Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 119).

Zylstra v. Graham, 244 Mich 319, sets the temper and gives us the tone of Miss Blanchard’s rather manifest duties as the situation ahead unfolded before her. As the car she was driving came up over the crest of the hill she saw or should have seen the exuberant milling and movement of a school just dismissed; the multiple use of buses and cars for carriage of students from school to home or soda fountain; 1 or 2 fully loaded school buses, plus student filled cars, coming toward her and moving out into the street so that her own avenue of approach and passage was necessarily reduced in maneuverable width; children crossing the street in front of her from left to right and, finally, a schoolteacher she had known for some years crossing or starting to cross the intended path of her car from right to left. If Mrs. Steger should have discovered approach of the car in these circumstances — this as we shall see became a question of fact; — so also was the jury entitled to find that Miss Blanchard should have timely discovered and acted with regard for the scene before her — termed in Zylstra (p 324) “the crowded condition of the thoroughfare as to both vehicles and people.”

Miss Blanchard’s obligation at that moment, owing to all pedеstrians and motorists temporarily occupied in utilizing most of the street ahead, transcended in degree Mrs. Steger’s duty of continued watchfulness to the east. This is so because Mrs. Steger was obligated to guard hеrself against comparably ‍​‌‌​​​​​​​​‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌​‌​​‌​​​​‌‌​‍more imminent danger to her right than to her left; whereas Miss Blanchard’s duty of specially watchful vigilance was, as a sailor would say, “dead ahead.” There was no cross or intersectional traffic to divert Miss Blanchard’s attention and she was operating — then existent circumstances con *586 sidered — what is known in our hooks as a “dangerous instrumentality.” It then and there became incumbent on her to maintain such lookout to the fore, and to bring the car under such control, as to permit it to be “stopped on the shortest possible notice.” *

On this record the jury was entitled to find that Miss Blanchаrd breached the aforesaid onus of responsibility by driving into the area of congested activity at an excessive rate of speed; by failing to' maintain a proper lookout ahead when the visible situation fairly called therefor; by failing to timely discover the presence of an elderly person walking forward into the intended path of her car, and by failing to act with regard to such discovery; by fаiling to sound any warning whatever of the car’s-approach to those who were then visibly using the paved street area in numbers, and by failing to attempt stopping of the car until the approximate timе Mrs. Steger was struck.

It is noted at this point that Miss Blanchard was not sworn during the trial and that her absence from the witness stand is unexplained in the record. Her father, the defendant, was the only defense witness. He was not riding with his daughter at the time and knew nothing of the so-called accident facts. Consequently, we are given no explanation or reason for the driver’s causative acts and omissions in circumstances fairly сalling for excusive facts (if there were such); which facts of necessity would be known only to the absent witness. "We must, then, in the course of test of this motion for instructed verdict, rule that Miss Blanchard was guilty of negligence *587 which was actionable if Mrs. Steger was free from contributory fault.

Was Mrs. Steger, once she had satisfied herself that no car was approaching from her left within the testified distance of fair visibility, reasonably entitled thereafter to expect that Miss Blanchard would execute in some degree the duties we have just considered? The answer, so far as this .motion for an instructed verdict is concerned, must be аn unequivocal yes. It was for the jury to say, and not the trial judge, whether a person of reasonable prudence would have conducted himself (or herself) as Mrs. Steger did in the described situation and, so far аs concerns our assuming to pronounce judgment on her conduct as a matter of law, we decline to do so for the same reason (consistent with Van Steinburg and cases following its rule) as was given ‍​‌‌​​​​​​​​‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌​‌​​‌​​​​‌‌​‍by way of utilized рresumption in Zylstra. In each case — Zylstra and now Steger — the pedestrian had a right to assume that any person, operating a motor vehicle in same or similar circumstances, would so regulate the speed thereof, and attend to such vigilant control thereof, as to constitute fair performance of the aforesaid duties. Such right of assumption, qualified though it may be, leaves in this case a problem the solution of which cannot “be one upon which the law can pronounce a definite sentence;” one we must leave “to the sifting and determination of a jury.” (Quotations from Van Steinburg, p 119 of report.) *

There is some point, depending on givеn circumstances, where the crossing pedestrian may — and sometimes should — transfer his gaze of vigilance from one direction to another, having first satisfied *588 himself that no danger may, within reason, be immediately аnticipated from the direction of initial view. So, and in this case, reasonable men might well find that Mrs. Steger’s testified direction of gaze, as she started and continued to walk toward the school, was promрted by fair judgment — based on her having previously scanned the street to the east — that the imminence of possible peril to her right outweighed the chances of harm to her left.

This Court is fully mindful of the cases defendant relies upon (headed by Malone v. Vining, 313 Mich 315; and Ludwick v. Hendricks, 335 Mich 633) and is aware of its rulings that a pedestrian in specific circumstances must “look and keep on looking.” The trouble with citation of such authorities, and with their attempted fitmеnt to the case at bar, lies in the false assumption that a generally applicable rule was therein declared; whereas, and as we have just seen, a pedestrian in given circumstances may not be obligated — as a matter of law — to keep on looking-in the same direction. We must keep in mind the rules of Restatement to which allusion was made in Dokey v. Carpenter, 300 Mich 648; likewise the circumscribing declaration ‍​‌‌​​​​​​​​‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌​‌​​‌​​​​‌‌​‍madе in that case (p 650 of report), viz.,

“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 towаrds him. Haley v. Grosse Ile Rapid Transit Co., 290 Mich 373; Sloan v. Ambrose, 300 Mich 188. No general rule can be stated, however, that will govern all factual situations.”

The jury below, having deliberated according to instruction, found that Mrs. Steger was not guilty of contributory fault. Such finding was justified by the evidence and we are unable to say that all reasonable men would disagree therewith. It fol *589 lows that the motion for judgment notwithstanding verdict should have been denied and that the judgment entered below must be reversеd.

The case should be reversed and remanded for entry of judgment on the verdict. Costs to plaintiffs.

Smith, Edwards, and Voelker, JJ., concurred with Black, J. Sharpe, J.

(for affirmance). I am not in accord with the opinion of Mr. Justice Black. There are certain undisputed facts in the case at bar which are controlling. This is not a case of crossing at an intersection, nor is it one where traffic lights are involved. Plaintiff attempted to cross a busy thoroughfare at a time when many school children were on the sidewalks or in the street. As plaintiff stepped from the curb ‍​‌‌​​​​​​​​‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌​‌​​‌​​​​‌‌​‍she could have seen a car at a distance of 300 to 335 feet to her left. She states that she did not see defendant’s cаr, but other witnesses did see it; hence, she must be charged with seeing what was plainly to be seen. By her own testimony she took no more than 5 steps when she collided with defendant’s car, and at that time was approximately 8 feet from the curb where she started from.

I am of the opinion that the result to be attained is governed by Schillinger v. Wyman, 331 Mich 160, 164, where we said:

“Decedent could and should have seen defendant’s car approaching; it did not suddenly swerve toward him, but approached and collided with him in its own outer lane. Decedent either failed to make proper observation before entering the east lane or, having made it, failed to see what was plainly there to be seen, viz., defendant’s car approaching him or, having seen it, negligently took his chances and *590 proceeded in the face of known danger, with the result that he walked into the side of or stepped immediately in front of defendant’s left front fender. In any such event, viewing the testimony in the light most favorable to plaintiff, decedent was guilty of contributory negligence аs a matter of law.”

The trial court was right in granting a judgment non obstante veredicto.

Defendant may recover costs.

Dethmers, C. J., and Kelly, and Carr, JJ., concurred with Sharpe, J.

Notes

*

“Where a ear is being driven in the immediate vicinity of a schoolhouse, particularly at a time when school is being dismissed, the driver of the сar must use special caution for ‍​‌‌​​​​​​​​‌‌​​‌​‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌​‌​​‌​​​​‌‌​‍the protection of children in that vieinity; under these circumstances it is his duty to bring his ear under such control that it can be stopped on the shortest possible notice.” (Stevenson v. Sarfert, 310 Pa 458, 462 [165 A 225, 226].)

*

The reader interested in further pursuit of this legal right of assumption — that another will perform Ms legal duty — may read with profit Mr. Justice Cooley’s application thereof to the facts in an old yet common type of pedestrian case (Van Steinburg, pp 123, 124 of report).