Morrison v. Grass , 314 Mich. 87 ( 1946 )

Plaintiff Carre W. Morrison sues to recover damages for injuries she received when she was struck by defendant's automobile as she was walking across Grand River avenue in the city of Detroit at the intersection of Prevost avenue. Plaintiff Colin D. Morrison, husband of Carre W. Morrison, sues for damages sustained by him by reason of the injuries to his wife. Verdict in each case was in favor of plaintiff. There were special questions submitted to and answered by the jury. Defendant appeals. The two cases were consolidated for trial and again on appeal.

Grand River avenue is a main-traveled thoroughfare running from downtown Detroit to Lansing and Grand Rapids. At the intersection in question it runs in a northwesterly-southeasterly direction, 76 feet wide between curbs. Double streetcar tracks take about 14 1/2 feet of the center, and the pavement between each curb and the nearest rail is 30 feet, 9 inches wide. In the testimony the northwesterly direction of Grand River is called west and the southeasterly direction, conversely, is called east.

On April 8, 1943, plaintiff Carre W. Morrison, hereinafter referred to as plaintiff, left her employment in a downtown Detroit bank and boarded a streetcar on her way to her home, which was near Grand River and Prevost avenues. She left the car a few blocks before reaching Prevost and did some shopping. She then walked to the northwest corner of Grand River and Prevost avenues, where she intended to cross Grand River avenue on foot from the northwest to the southwest corner of the intersection. She selected that crossing because it is a better place to cross than any other street along there and the streetcars stop there. It was then about 5 p.m., still daylight; the pavement was dry and weather normal. Plaintiff carried her purse, which was not large, in her right hand, and in her left hand below the level of her shoulder she carried two light packages.

When plaintiff got to the northwest corner of the intersection, she waited for westbound Grand River traffic to clear. Having noted that the traffic was clear going westerly, she walked south to the streetcar tracks. When she got to the farthest track to the south, she saw the car driven by defendant, midway between the streetcar track and the curb, coming toward her in the block to the west between Prevost and Rutherford streets. The defendant's car was about one-third into the block, in other words, about 200 feet from plaintiff, when plaintiff was at the southerly track, at which point plaintiff hesitated, took in the situation, did not stop, and had plenty of time to cross, according to her judgment. The defendant at no time slackened the speed of her car and did not see plaintiff leave the streetcar track.

Defendant testified that just before the accident she was looking around to her right for a period of time described by her as a breath or two. After the breath or two, defendant looked ahead and for the first time saw plaintiff, who was then directly in front of her car about 30 feet away. Defendant testified she became frozen stiff with excitement, did not swerve her car to the right or left, did not slacken her speed nor apply her brakes, and did not blow her horn. Defendant's car struck plaintiff at a point about 10 feet from the southerly curb. The right outer portion of the right front fender of defendant's car struck plaintiff on the rear portion of the right hip.

The ordinance of the city of Detroit received in evidence is as follows:

"When traffic control signals are not in place or not in operation the driver of a vehicle shall yield the right of way slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield."

The question as to the rate of speed of the defendant's car was not submitted to the jury because plaintiff's counsel admitted that the defendant's car did not at any time travel at a speed greater than 25 miles per hour. Questions 2, 3 and 4 are as follows:

(2) Did the defendant's automobile travel at the same speed from the time it was first seen by the plaintiff until the collision occurred?

Answer of the jury: Yes.

(3) Did the defendant's automobile travel in the same lane of traffic on Grand River avenue from the time it was first observed by the plaintiff until the collision occurred?

Answer of the jury: Yes.

(4) Did the impact occur in the second traffic lane from the south curb of Grand River avenue?

Answer of the jury: Yes.

While walking from the south rail to the point of collision, plaintiff walked rapidly as people do when they know traffic is coming; she continued to observe the approach of the car and considered she was safe. The distance from her place at the south rail, where she says she hesitated but did not stop, to the southerly edge of the second traffic lane, in which lane the jury's answer to question 4 says the accident occurred, was approximately 19 feet. When she was at the southerly streetcar rail, defendant's car was estimated by her to be two-thirds of a block away, about 200 feet. The jury could have considered that her walk was at the rate of three miles per hour and that the automobile was approaching her 8 1/3 times as fast as she was walking, and therefore, while she was walking 19 feet the car would travel about 158 feet. This would leave her about 42 feet clearance. We cannot say therefore as a matter of law that she was contributorily negligent in concluding that she could safely walk to a point where she would be beyond the path of the oncoming automobile of defendant, and in proceeding so to do.

After plaintiff had arrived at a point where she was within 4 or 5 feet of entirely clearing the path of the oncoming car, it would evidently be necessary for her to look over her right shoulder to continue her observation of the car. Her vision past her shoulder was clear and her parcels did not interfere with her line of vision. At the last time that she looked over her shoulder, very shortly before the collision, she concluded that she was already safe. Evidently it was then necessary for her to further note traffic conditions ahead of her, besides noting the possibility of the approach of other cars in the farthest lane.

While it is true that the defendant claimed in an early part of her testimony that she saw plaintiff "dive" from a place of safety at the streetcar tracks into a position in front of her car, this testimony is contradicted by testimony given by witness Silverman, whose car followed defendant's car, that she told him she was looking in her rear-view mirror, in which case she could not be noting the actions of plaintiff. Defendant's testimony is also contradicted by her own later testimony that just before the accident she heard a sound like a police whistle, glanced to the right for the space of a breath or two, and that when she again looked ahead there was the plaintiff, whom she then saw for the first time, about 30 feet from her in front of her car. No witness other than defendant testified that plaintiff "dove" in front of defendant's car.

The testimony reveals the extraordinary nature of the accident in question, namely, that a driver having a perfect opportunity to see plaintiff while plaintiff was traveling 19 feet in front of her across the path of her car, and being under the command of the ordinance required to give the pedestrian the right of way, with no traffic to her right or left, did not swerve her car to any appreciable degree, did not sound her horn, did not slacken her speed, and ran the pedestrian down. It was for the jury to say whether an ordinarily prudent person in plaintiff's situation would have acted on the assumption that defendant would obey the ordinance and not be guilty of the very extraordinary negligence just recited.

It cannot be said as a matter of law that plaintiff's failure to jump out of the way of the car at the last moment is necessarily to be considered contributory negligence under all the circumstances of this case. It was for the jury to say whether an ordinarily prudent person would have done as plaintiff did in the instant case.

Defendant relies on the case of Haley v. Grosse Ile RapidTransit Co., 290 Mich. 373. In that case plaintiff's decedent crossed on foot in the middle of a block about 150 feet east of an intersection, while it was getting dark, and it was testified that he came out into the street when the bus was 150 feet away from him, traveling 35 to 40 miles per hour. In that case we say, p. 377:

"A moment's hesitation before reaching the car track, or one backward step, would have avoided the accident entirely."

It is evident that in that case the decedent could not have formed a reasonable judgment that he was safe and must have ignored the approaching bus, and could by no possibility have safely crossed in front of the bus. The circumstances of that case differentiate it from the instant case.

We have in mind Moldenhauer v. Smith, 311 Mich. 265, in which case the plaintiff left a place of safety in the middle of the street at midnight, misjudged the nearness of the automobile, started to travel 26 feet to cross the path in front of the car at a time when she was too near to permit the driver to stop his car, which was about 75 or 92 feet from her when she started to cross the farther half of the street. It is well known that in observing an approaching car after nightfall, a judgment as to the proximity or speed of the car, based on observation of headlights or otherwise, may prove to be unreliable and inaccurate. Plaintiff's claim in that case was in part based on a claimed unanticipated and excessive rate of speed. That case cannot be said to afford a standard for determining claimed contributory negligence of the plaintiff in the instant case.

In the cited case of Beers v. Arnot, 308 Mich. 604, plaintiff Beers made no accurate estimate of the proximity of the car and fell so far short of assuring himself of safety that although at the last he made an effort to leap out of the way of the car, he could not avoid the collision. The circumstances of that case differentiate it from the instant case, there being no ordinance requiring Arnot to yield the right of way to Beers. Plaintiff under the circumstances of that case had no right in entering upon the path of the car to assume that the driver of that car would or could avoid the collision. The facts in that case indicate that it was not in the power of Arnot, the driver, to avoid the collision at any time after Beers' action showed his intent to cross in front of the car.

The trial judge relied on Moore v. Noorthoek, 280 Mich. 431, in which we say at p. 437:

"In Guina v. Harrod, 275 Mich. 393, this court said:

"``Pedestrians have the right to cross the street at street crossings even on a through street. They are not required to anticipate that drivers will violate ordinances, statutes or rules of safety.'

"In Petersen v. Lundin, 236 Mich. 590, we said:

"``There is no rule of law requiring a pedestrian to rivet his eyes on an approaching automobile. He should look but if, having looked, it appears safe to cross, he may proceed, and his care is not to be determined solely by the fact he was struck and was not at that second looking at the automobile.'

"In the case of Nickels v. Hallen, 247 Mich. 291, the plaintiff was crossing Main street at an intersection in the nighttime and was struck by defendant's automobile. The court said:

"``The intersection was well lighted and no traffic interfered with view of pedestrian or car driver, and yet plaintiff claimed he looked before and while crossing, and did not see the car until it struck him, and the driver claimed he did not see plaintiff until the car was about two feet from him. When plaintiff left the curb to cross the street he saw a car coming, 100 feet, or more, away. That was, undoubtedly, the car which struck him. Whether plaintiff exercised reasonable care under the particular circumstances described by him was a question of fact for the jury and not of law for the court, and the trial judge was right in so holding.'"

The question of plaintiff's contributory negligence was properly submitted to the jury.

Judgment for plaintiff in each case is affirmed. Costs in each case in favor of plaintiff.

BUSHNELL and STARR, JJ., concurred with REID, J.