Krause v. Ryan , 344 Mich. 428 ( 1955 )

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. (PA 1949, No 300, § 671 [CLS 1952, § 257.671, Stat Ann 1952 Rev § 9.2371].) Ryan at the time was on his way to attend a basketball game im Linden, Michigan, and had with him in the automobile 6 other youths, 3 of them occupying the front.seat with the defendant. Upon reaching the intersection, Ryan failed' to observe the “stop” sign and thereafter struck plaintiff’s automobile on the left side. Approximately l/10th of a mile before the intersection of Bristol road there was a warning sign on Linden road signifying “Stop Ahead.” Defendant testified that he did not see this warning sign, or the stop sign, or the plaintiff’s automobile before the accident, except that he obtained a brief glimpse of the automobile immediately prior to the impact when his brother, who was sitting in the front seat, yelled, “Look Out.”

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 ■that the trial judge erred in denying their motions for a directed verdict and subsequent motion for judgment non obstante veredicto. It is unnecessary to cite the numerous authorities that on a motion for a directed verdict the testimony must be considered in the light most favorable to plaintiffs.

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 har.

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 re•quired. 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 peril•ously 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 intersection in advance of a car which reaches it at the same time.”

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 othérs. "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 the1 "favored driver may be negligent as a matter of law1, 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. must act as best he can for the protection of all involved. But such is obviously the unusual case. In the case before us the favored driver made the required observation of the approach of defendants’ car. With the knowledge derived from such observation, plus the knowledge of her own favored status, she reached the conclusion that she could safely maintain her course and speed. She did so, but collision ensued. In such a situation reasonable minds could differ as to whether or not she exercised reasonable care and the question of contributory negligence was properly submitted to the jury. We cannot say that under such circumstances plaintiff driver was guilty of contributory negligence as a matter of law. Breker v. Rosema, 301 Mich 685 (141 ALR 867), and authorities cited therein. See, also, generally, Marrs v. Taylor, 327 Mich 674; Trune v. Grahl, 337 Mich 659; and Soltar v. Anderson, 340 Mich 242.

In so doing, do we repudiate the established ease 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 operating table to the child at the edge of the highway, measuring with uncertain gaze and rising panic the speed of the oncoming truck against the distance to safety. Both situations, it is true, involve care, and both involve humans, but there the similarity stops. Even in that relatively narrow area of negligence involving moving vehicles, intersections, pedestrians, stop signs, arterial highways and traffic lights we find an infinite variety of problems, each with its peculiar circumstances, its unique considerations of care or the lack thereof. At the moment our problem is the determination of negligence on the high-speed, heavy-volume artery of traffic, known as the expressway, the throughway, or the arterial highway. It has its own peculiar considerations,, arising out of its peculiar hazards. It cannot be solved by “rules” taken from negligence opinions in other fields. The policy behind the construction of the great expressways is not involved in the cases-relating to ordinary street intersections (as to which we had a statutory right-of-way for many years- and before that a common-law preference). Such cases may guide us, but they cannot control our decision here. It is for that reason that we reject as-precedent on the problem before us most of the cases cited by our learned Brother. “We have constantly held,” he reminds us, “that a favored driver approaching an intersection who seasonably observes-another vehicle approaching it at right angles and then proceeds in reliance on the right-of-way without giving the other vehicle further heed is guilty of contributory negligence as a matter of law equally as if he had not looked at all.” So we have, and so,, we assume, we shall continue to hold. (But not with respect to arterial highways, guarded by the posted command to stop before entering.) He cites, for this indisputably correct statement, MacDonald v. Skornia, 322 Mich 370, 372 (dissent): (“Neither street is a so-called stop street or preferred over the other”); Block v. Peterson, 284 Mich 88, 94: (“Plaintiff did not establish that US-10 was a stop highway”); Koehler v. Thom, 285 Mich 593, 594: (“Neither road is superior to the other, there being' no stop signs at this intersection”); Nelson v. Linderman, 288 Mich 186, 188: (“Neither is superior to the other”); and Martin v. City of Detroit, 314 Mich 77, 80: (“Neither of the streets in question was a stop street”). Of the remaining 2 cases cited at this point, it does not appear from the opinion in Boerema v. Cook, 256 Mich 266, whether a stop highway was involved or not, and in Lacaeyse v. Roe, 310 Mich 591, the disfavored driver entering the stop highway from the subordinate road was found guilty of contributory negligence as a matter of law, a decision of little comfort to one urging the opposite result.

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, but Jamieson and Brown’s observation in their Michigan Automobile Law (1st ed), p 61, is well taken and to the point: “It is difficult to reconcile Wehling v. Linder with the other cases in this group, especially with Weil v. Longyear, 263 Mich 22, a later decision.” Likewise, the complete inapplicability of the cases involving pedestrians at intersections might detain us shortly but their differentiation under the negligence formula, “same or similar-circumstances,” seems obvious.

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 loss 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 surroundings of imminent peril we will not, as a matter of law, rivet his gaze to a side road. We will not add to his burdens, and his dangers, and the dangers of those around him, by a judge-made and impossible-rule of conduct.

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.