Buchanan v. Cockrill , 385 Mich. 292 ( 1971 )

385 Mich. 292 (1971) 187 N.W.2d 892

BUCHANAN
v.
COCKRILL

No. 8 June Term 1971, Docket No. 53,024.

Supreme Court of Michigan.

Decided July 7, 1971.

Norman N. Gottlieb, for plaintiff.

Gault, Davison & Bowers (by Guy H. Hill), for defendant.

PER CURIAM:

Plaintiff Lola Buchanan's car was struck by defendant's car at an intersection of Dye Road and Miller Road (M-78) west of Flint. The accident occurred on January 16, 1967, resulting in personal injury to plaintiff. Defendant was granted a directed verdict upon completion of plaintiff's proofs based on failure to present evidence from which the jury could find defendant negligent and upon plaintiff's contributory negligence as a matter of law. Plaintiff appealed. The Court of Appeals initially reversed in an unreported opinion dated April 28, 1970. Subsequently, the Court sua sponte ordered a rehearing and affirmed the trial court's directed verdict for defendant because their prior decision conflicted with Chambers v. St. John (1969), 20 Mich. App. 533. (23 Mich. App. 405.) Our grant of leave to appeal is noted at 384 Mich. 768.

Viewed most favorably to plaintiff, the testimony in this case is that, at the time of the accident, M-78 was slick to slippery and visibility was limited by snow and sleet. Plaintiff was driving north on Dye Road and had stopped at the stop sign marking its intersection with M-78. Most cars traveling on M-78 had their lights on. After observing traffic for five to ten minutes, plaintiff, with the concurrence of her passenger, Effie Whitledge, determined that it was safe to cross M-78 and proceeded across the intersection at a slow speed.

M-78 is a four-lane highway with a three-foot divider island separating its eastbound and west-bound lanes at its intersection with Dye Road. Defendant was driving east on M-78 at 40 to 45 miles per hour. Defendant did not have his car lights on. Just before the accident occurred, he passed on the right two cars in the left lane of M-78 that were preparing to make left turns onto Dye Road. Defendant was going at about twice the speed of those cars. After passing them, he pulled back into the left lane. Shortly after pulling back into the left lane, defendant saw that plaintiff's car was in the intersection, put on his brakes, and slid into plaintiff's car, the front end of which was already into the center island area.

Defendant relies on MCLA § 257.649 (Stat Ann 1968 Rev § 9.2349), which states in pertinent part:

"(f) * * * After having stopped, the driver shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard during the time when the driver would be moving across or within the intersection."

He argues that negligence as a matter of law results from violation of this statute. This begs the question.

At the time of the collision, plaintiff had 45 years' driving experience with no accidents or traffic violations. She had stopped for M-78 traffic some five to ten minutes before she and her passenger decided it was safe to cross the superior highway. Whether she violated the statute was a question of fact which should have been left to the jury. This is particularly the case since the burden of proving contributory negligence was on defendant. See, Dearborn v. Bacila (1958), 353 Mich. 99, 110-119; Knickerbocker v. Samson (1961), 364 Mich. 439, 445; Kratochvil v. Grayling (1962), 367 Mich. 682, 687; Thompson v. Llewellyn (1964), 372 Mich. 588, 592; GCR 1963, 111.7.

As for defendant's negligence there was evidence that he was traveling five miles per hour below the maximum speed limit in a snow storm on a wet, slippery road and that his speed was double that of other traffic. MCLA § 257.649 (Stat Ann 1968 Rev § 9.2349) in part provides:

"(e) The driver of any vehicle traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder."

Whether defendant was driving at an excessive speed for the weather conditions was also a factual determination to be made by the jury. MCLA § 257.627 (Stat Ann 1968 Rev § 9.2327); Ryder v. Murphy (1963), 371 Mich. 474, 477-479; Kemp v. Aldrich (1938), 286 Mich. 591, 595, reversed on rehearing on other grounds 286 Mich. 715; Petersen v. Lundin (1926), 236 Mich. 590, 592.

The Court of Appeals is reversed. The case is remanded to the trial court for a new trial. Costs to plaintiff.

T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.