Letcher v. Robinson

340 Mich. 350 (1954) 65 N.W.2d 799

LETCHER
v.
ROBINSON.

Docket No. 52, Calendar No. 46,144.

Supreme Court of Michigan.

Decided September 8, 1954.

Burns, Hadsell & Mollison (Philip A. Hadsell, Jr., of counsel), for plaintiff.

Seymour, Seymour & Hughes, for defendant.

BUTZEL, C.J.

Plaintiff Alois Letcher sued defendant Norman J. Robinson to recover damages because of injuries and loss of earnings that resulted from being struck by defendant's automobile on Portage road in Berrien county. The lower court in granting defendant's motion for a directed verdict of no cause of action at the close of plaintiff's case, ruled as a matter of law that plaintiff was guilty of contributory negligence. Plaintiff has appealed, asserting as error the granting of the motion for a directed verdict and a subsequent denial of a motion for a new trial.

Plaintiff resides on a farm situated on the north side of Portage road, an east-west 2-lane highway having a paved portion 20 feet in width. On May 30, 1951, at approximately 8:50 p.m. plaintiff was informed by one Homer Knapp that plaintiff's cows had broken out of the pasture. Plaintiff immediately left his house and ran in a westerly direction from his home about 100 feet down the north shoulder of the highway where he located the cows. Four cows had broken out, 3 of which remained in the grass near plaintiff's fence on the north side of the highway. The fourth cow was within 2 feet of the north edge of the paved portion of the highway and "acted as though she was going to step into the highway and cross." Knapp preceded plaintiff by about 100 or 150 feet in the westerly direction and, since it was dark at the time, by shining a flashlight on the cows and on the road, succeeded in halting an eastbound automobile. Plaintiff looked east, observed the lights of a westbound vehicle, and estimated the distance of the approaching vehicle as 500 to 600 feet from the point at which he stood. Plaintiff then stepped onto the north edge of the highway and began walking in a semicircle in order to drive the cow standing near the north edge of the pavement back from the highway.

During direct examination plaintiff testified as follows:

"Q. How far across the road did you go in this semicircle?

"A. Just a little past the center of the highway, just a little, not quite two-thirds, just a trifle over past the center, enough so my head, and that was —

"The Court: You were going south?

"A. Yes.

"Q. After you got to the center of the road, what direction were you going?

"A. Just kept making that circle toward the cow.

"Q. Which direction were you going when you last remember?

"A. I was going southwest. I just remember crossing half of the highway and that is all I can remember."

On redirect examination plaintiff further stated:

"Q. How far back across the center of the line were you when you last remember anything?

"A. As far as I can remember I just made a turn and after I made the turn I can't remember — I couldn't say how many steps from the center of the line I went north, I couldn't say because I remember making the turn and that is all."

Plaintiff's witness Knapp testified:

"Q. Now, you said you saw Mr. Letcher go across here, and now did you see him get hit?

"A. Yes, that is what I seen. I seen him get hit. I hollered, ``Look out' less than a second before.

"Q. Did you see him go from north to south?

"A. No.

"Q. Did you see him go from the center of the road?

"A. Starting back, yes, I see him when I hollered ``Look out' and about that time the car hit him."

Plaintiff's son, Russell Letcher, testified concerning the skid marks which he observed on the highway as follows:

"Q. What did you measure?

"A. The skid marks, all 4 skid marks.

"Q. Where were they, where did they show the car — what did they show the path of the car to be?

"A. Showed the path of the car to be about the center of the road and as they skidded they skidded to the side of the road.

"Q. Which direction?

"A. That would be to the north."

Plaintiff's son estimated the speed of defendant's automobile prior to striking plaintiff at 50 miles per hour.

Assuming for the purposes of this appeal that the defendant was negligent, the issue before us is whether the trial judge properly ruled that the plaintiff was guilty of contributory negligence as a matter of law. In so ruling the trial judge cited Malone v. Vining, 313 Mich. 315, wherein this Court stated:

"Under present-day traffic conditions a pedestrian, before crossing a street or highway, must (1) make proper observation as to approaching traffic, (2) observe approaching traffic and form a judgment as to its distance away and speed, (3) continue his observations while crossing the street or highway, and (4) exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances."

See, also, Ludwick v. Hendricks, 335 Mich. 633; Ashley v. Kilborn, 333 Mich. 283.

Construing the evidence in the light most favorable to the plaintiff at the time the motion for the directed verdict was made, only one conclusion is possible: that plaintiff failed to make proper observations while walking the semicircular route over the lane upon which he was aware that the defendant's vehicle was approaching. Rather than continuing to make observations in the direction of known and approaching danger, plaintiff, in effect, turned his back on the direction from which danger could be foreseen.

Plaintiff on appeal asserts that the evidence established that he was struck on the south lane of the highway and that he was therefore in a position of apparent safety. Plaintiff claims, therefore, that under the Michigan cases the question of contributory negligence was for the jury. Lang v. Ginste, 333 Mich. 108; Hoffman v. Stickney, 338 Mich. 478; Campbell v. Brown, 276 Mich. 449; Rowland v. Brown, 237 Mich. 570. We may not indulge in the assumption of plaintiff as to the point of impact, since such is not supported by the record. Plaintiff's own testimony established that at best he was at one time a trifle over the center line; that he remembered making a turn and starting back into the north lane. Witness Knapp testified that he saw plaintiff starting back from the center line going to the north. The testimony in regard to the skid marks does not establish the point of impact as in the south lane. The skid marks showed the path of the defendant's car to be about in the center of the highway. In comparison with the cases cited by plaintiff, we note that in this case plaintiff was not crossing into or seeking a place of apparent safety from the realized danger but in contradistinction was, in disregard of his earlier observation and personal safety, walking a route on the highway which would, in effect, keep him at all times in the path of foreseeable danger without making further and continuing observations in that direction.

The action of the trial court in granting defendant's motion for a directed verdict is affirmed, with costs to the appellee.

CARR, BUSHNELL, SHARPE, BOYLES, REID, DETHMERS, and KELLY, JJ., concurred.