Rathburn v. Riedel , 291 Mich. 652 ( 1939 )

Defendant appeals from a judgment of $5,009.18, entered upon the verdict of a jury in favor of plaintiff for damages sustained by him as a result of a collision which occurred at Barrett's Corners between Lake City and Falmouth about six miles cast of Lake City on December 16, 1938. Plaintiff had been engaged for about two years in hauling the mail from Cadillac to Falmouth. He had passed this corner four times each day and during the last few years had driven 60,000 to 70,000 miles a year.

Plaintiff was traveling east on an east-and-west 30-foot county gravel road and defendant was traveling south on a north-and-south road of the same width and character. The day was clear, and neither road was a through highway. As plaintiff approached this intersection about 5 p. m. at a speed of 45 miles per hour, he slowed up somewhat, looked to the north and south, and, seeing no vehicle approaching, continued at about 30 miles per hour. When he entered the intersection he observed defendant's car about 50 feet to the north, slowing up, and, believing that defendant was going to stop, plaintiff made no attempt to lessen his speed. Instead of stopping, defendant made a left turn into the east and west highway, and struck plaintiff's car. It rolled over several times, knocked down some wooden guard posts, and stopped with its front wheels in a three-foot ditch on the south side of the road. The trial court held that plaintiff's contributory negligence and defendant's negligence were questions for the jury.

The court said in Thompson v. Michigan Cab Co., 279 Mich. 370,373:

"It is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence. Some cases must, of necessity, stand or fall on their own facts. What one does or fails to do as relates to the circumstances under which he acts is the test to be applied. Flynn v. Kramer, 271 Mich. 500,505.

"While no hard and fast rule exists that speed or statutory right of way is determinative of negligence as a matter of law, each driver must use such care as is commensurate with obvious conditions. Bugbee v. Fowle, 277 Mich, 485, 490."

The statutory right of way^* is not an assurance of safety or an absolute right under all conditions. Kerr v. Hayes,250 Mich. 19.

In the instant case, there is considerable conflict in the testimony as to clear view. Visibility at an intersection is a factor and more care is required under some circumstances than others.

The situation presented in this record is comparable to that disclosed in Holloway v. Nassar, 276 Mich. 212. That case has to do with a collision at an intersection and defendant's contention that plaintiff was guilty of contributory negligence as a matter of law. The court said:

"He testified that as he came north he saw Nassar approaching from the west and watched him; it was a dark night; he saw Nassar's lights but could not judge his speed or distance away; however, he, plaintiff, reduced his speed to about 25 miles per hour as he came to the intersection and when he reached its south line he saw Nassar (who was farther away from the intersection), slacken speed; thereupon plaintiff, thinking Nassar had slowed up to turn, accelerated his speed and had crossed the center line of the intersection when he was struck by Nassar's car, which had speeded up and had made a swing to the left or north and across the center line. Nassar claims he cannot remember what happened. Accepting the testimony most favorable to plaintiff, the question of his negligence dearly was for the jury."

In this appeal, where the sole question presented is whether plaintiff is guilty of contributory negligence as a matter of law, we must accept the testimony most favorable to him. Under this record, the question of his negligence was for the jury.

The judgment entered upon its verdict is affirmed, with costs to appellee.

BUTZEL, C.J., and SHARPE, POTTER, CHANDLER and McALLISTER, JJ., concurred with BUSHNELL, J.

^* See 1 Comp. Laws 1929, § 4712 (Stat. Ann. § 9.1580). — REPORTER.