Triestram v. Way ( 1938 )

From a review of the record in these two consolidated cases, I am of the opinion the judgments entered in the circuit court should be affirmed. The testimony abundantly supports the facts stated and sustains the conclusion reached by the circuit judge. We quote in part the opinion and ruling of the circuit judge in consequence of which the judgments non obstanteveredicto were entered:

"Plaintiffs' cases in substance are, that on a straight, level trunkline highway, on a bright, clear, dry day, without any other traffic whatever, plaintiff, Clarence Triestram, as driver, observed defendants' car approaching from the opposite direction, on plaintiffs' half of the pavement, for a distance of one-half mile, without any apparent reason or excuse, and that plaintiff, Clarence Triestram, failed to slacken his speed, sound his horn, turn farther toward his side of the highway, or do anything to avert the collision until the two cars were within a few rods of each other, and that he then turned his car to the left; that defendants' car then immediately moved in the same direction, and that Triestram then turned to the right, and the collision occurred well on defendants' half of the highway.

"Thus did plaintiffs offer to excuse the collision with defendants' car on defendants' half of the pavement.

"Plaintiffs were not suddenly placed in a position of peril, nor truly confronted with a sudden emergency. Clarence Triestram was not confused nor excited while the two cars were approaching each other throughout practically the entire distance of one-half mile.

"Accepting plaintiffs' version of the transaction, it must have been apparent to Clarence Triestram in the ample opportunity for reflection afforded him, that the slackening of his speed or the sounding of his horn, or both, might reasonably avert the collision. He made absolutely no use of the means at hand for his own protection."

Under such a record it conclusively appears that notwithstanding the plaintiff driver, Clarence Triestram, had ample opportunity to exercise some degree of care and caution to avoid the consequences of a plainly impending danger, he did absolutely nothing to that end until it was too late. These cars were approaching a head-on collision, with full knowledge of plaintiff driver, for a period of 20 to 30 seconds; but he took no precaution whatever to avoid disaster until less than one second of time prior to the impact, i.e. when the approaching cars were 60 to 80 feet apart. He was not frightened or excited: In thus failing to use that degree of care which a reasonably careful and prudent man would have used the plaintiff driver was guilty of negligence which conclusively contributed as a cause of this accident. If, as this record discloses, an emergency finally developed, the conduct of plaintiff driver, as well as that of defendant driver contributed to bring about this emergency, and under such circumstances neither of the parties plaintiff in this action can recover. Luck v. Gregory,257 Mich. 562; Meisenheimer v. Pullen, 271 Mich. 509.

In his opinion Mr. Justice CHANDLER has said:

"The trial court believed no emergency existed because of the testimony of Clarence Triestram that he was acting in a calm and deliberate manner immediately preceding the crash."

I do not so understand the opinion of the trial judge. Instead the trial judge pointed out, as hereinbefore noted, that plaintiff driver was aware of the whole developing dangerous situation in ample time to have done something to have avoided disastrous consequences, and notwithstanding this the driver did nothing to avert the collision. Under such circumstances the trial judge held, and I think properly, that plaintiffs could not recover in this case on the theory of a sudden emergency; and in detailing the whole situation the circuit judge further noted that plaintiff driver was not excited but instead acted in a calm and deliberate manner. This latter circumstance was a mere incident, and not the ground upon which the trial judge concluded plaintiffs were not entitled to go to the jury on the theory of a sudden emergency.

The judgments entered in the circuit court should be affirmed, with costs to appellees.

WIEST, C.J., concurred with NORTH, J. BUTZEL, J., took no part in this decision.