Wallace v. Rosenfeld

This is an action for damages for the death of plaintiff's decedent growing out of an automobile accident. The accident occurred May 4, 1936, at the junction of US-31 and Bertrand road about four miles south of Niles, Michigan. At the place where the collision occurred US-31 is 40 feet wide, a four-lane concrete highway running north and south, while Bertrand road is a tarvia top macadam road about 16 feet wide running east and west. US-31 at this junction is a through highway and vehicles entering the main highway are required by law to stop before entering.

On the day in question between 4 and 5 p. m., plaintiff's decedent was being driven by Willard Schroeder from his home west of US-31 to Niles, Michigan. Schroeder and decedent were traveling east on the Bertrand road and when they reached a point about 7 or 8 feet west of the pavement of US-31, Schroeder stopped his car, looked both ways on US-31, waited for cars to pass on US-31, and then entered the main highway. Schroeder was able to get the front of his car into the third lane from the west on US-31 and started to turn north. At this time he saw defendants' car about 30 or 40 feet away. Defendants' car struck the rear half of Schroeder's car, threw decedent out on the pavement, injuring her so that she died about two hours later.

At the close of plaintiff's case, defendants moved for a directed verdict on the ground, among others, that Schroeder was guilty of contributory negligence as a matter of law. The court reserved decision on the motion under the Empson act, 3 Comp. Laws 1929, § 14531 (Stat. Ann. § 27.1461). The jury returned a verdict for plaintiff, but the trial court at a later date entered judgment for the defendants. Plaintiff appeals and contends that the trial court was in error in determining that Schroeder was guilty of contributory negligence as a matter of law.

In Frary v. Grand Rapids Taxicab Co., 227 Mich. 445, we said:

"In cases of this character it should be made very plain by the proofs that the conduct of the plaintiff was negligent before his conduct is declared to be negligent as a matter of law."

In Flynn v. Kramer, 271 Mich. 500, 505, we said:

"It is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence."

Plaintiff relies upon the case of Lindzy v. Swaab, 263 Mich. 264 . That case involves a collision at an intersection. Plaintiff approached the 40-foot main highway from the west. She stopped her car, looked both ways for traffic. There was no car in sight from the north. At this point she had a view of 372 feet in the direction from which the defendant's car came; further view was cut off by a hill over which the main highway passed. The cause was submitted to the jury which found that plaintiff was not guilty of contributory negligence in fact. In that case we said, "The question was one of fact for the jury, and the court was not in error in so holding."

In Lefevre v. Roberts, 250 Mich. 675, plaintiff's truck driver attempted to cross a trunkline highway. He observed defendant's automobile approaching at a distance of 400 feet, but made no further observation of the approaching vehicle. A collision occurred. We there said:

"If the automobile was 400 feet from the intersection when the driver of the truck started to cross (and upon this we must accept the truck driver's testimony), then it cannot be said as a matter of law that he was guilty of negligence, even though he made no further observation of the oncoming auto. Whether the truck driver was negligent in fact was an issue for the jury."

In the case at bar, as Schroeder approached the main highway he stopped, looked to the north a distance of 700 or 800 feet and saw no cars coming from that direction. He then attempted to cross and as he was entering the third lane of the highway he saw defendants' car a distance of 30 or 40 feet away approaching at a speed of 70 or 80 miles per hour. The record is convincing that as Schroeder entered the concrete portion of US-31, defendants' car was approximately 528 feet away from the intersection. While Schroeder did not see defendants' car at this point, yet he is charged with the knowledge of having seen what was plainly there to be seen. We think that reasonable minds might differ upon the question of whether Schroeder was guilty of contributory negligence imputable to plaintiff's decedent and hence it presents a question of fact for the jury.

The judgment of the trial court is reversed and judgment will be entered therein in the amount determined by the jury. Plaintiff may recover costs.

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