MacDonald v. Skornia

I do not concur in the opinion written by the Chief Justice.

Plaintiff testified that he made one observation of defendant's automobile when it was about 120 feet from the intersection but made no estimate of the speed at which it was approaching and that, in fact, he would have been unable to say at the time whether defendant's car was "parked or coming."

Applicable to the facts in this case is the following from AnnArbor Construction Co. v. Russ, 312 Mich. 527:

"In DiMatteo v. Smith, 309 Mich. 640, we quoted with approval from Stuck v. Tice, 291 Mich. 486, as follows:

"``Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame.'

"The facts in all the cases set forth in the briefs differ but the general rule remains the same. There are exceptions where one of the drivers suddenly accelerates his speed or without any reason changes the direction of his car."

The quoted statement is no mere arbitrary judicial pronouncement, but a recognition of the fact that normally a collision will not occur between two automobiles at an intersection when both drivers observe the duties which we have repeatedly held repose upon them. What are those duties?

This Court has held time and again that the driver of an automobile must make proper observation before entering an intersection. If he enters without looking up and down the street intersecting with that on which he is traveling for approaching traffic, he, as a plaintiff, is guilty of contributory negligence as a matter of law. A few of our many decisions so holding are:Smith v. Ormiston, 242 Mich. 600; Kerr v. Hayes,250 Mich. 19; Kok v. Lattin, 261 Mich. 362; Ehrke v. Danek,288 Mich. 498; Gallagher v. Walter, 299 Mich. 69.

No idle ceremony is subserved by the requirement that such plaintiff maintain a lookout. He is equally held to be guilty of contributory negligence if he looks and proceeds without seeing approaching traffic which is there plainly to be seen. Zuidema v. Bekkering, 256 Mich. 327; Knight v. Merignac, 281 Mich. 684; Carey v. DeRose, 286 Mich. 321. Furthermore, if he takes but a fleeting glimpse and sees a vehicle approaching on the intersecting street, but proceeds into the intersection without giving the other vehicle any further heed, he is guilty of contributory negligence as a matter of law. Boerema v. Cook,256 Mich. 266; Block v. Peterson, 284 Mich. 88; Koehler v.Thom, 285 Mich. 593; Nelson v. Linderman, 288 Mich. 186;Lacaeyse v. Roe, 310 Mich. 591; Martin v. City ofDetroit, 314 Mich. 77.

A driver who proceeds into an intersection without ascertaining whether traffic is approaching on the intersecting street is not excused by the fact that his view, as he approaches the intersection, is obstructed. As we said in Plaskett v. VanBuren County Road Commission, 295 Mich. 54:

"If we consider that the view of the intersection is obscured, then it is the duty of drivers in approaching the intersection to use such care under the circumstances as would be required by an ordinarily prudent person."

In Ehrke v. Danek, supra, we held that under such circumstances, when the view is so obstructed, an ordinary, reasonable, prudent and careful person would stop in a position of safety from which due observation could be made, and look to ascertain to a certainty whether another vehicle is approaching the intersection behind the obstruction. A plaintiff who neglects so to do is guilty of contributory negligence as a matter of law. See, also, Cline v. Killingbeck, 288 Mich. 126; HekmanBiscuit Co., for use and benefit of Royal Indemnity Co., v.Commercial Credit Co., 291 Mich. 156.

A driver is required, before entering an intersection, to make suitable observation of approaching cars, and, from conditions as they appear to him, to form a reasonable belief that he can cross the intersection in safety. Kerr v. Hayes, supra; Francis v.Rumsey, 303 Mich. 526.

To summarize, we have consistently held guilty of contributory negligence as a matter of law plaintiff drivers entering intersections who do not look at all, or who look but fail to see what is there to be seen, or who give what is there to be seen a fleeting glimpse but no further heed, or who look but find the vision obscured and proceed into the intersection without ascertaining whether traffic is approaching behind the obstruction, or who fail, after observation, to form therefrom a reasonable belief that the intersection can be crossed in safety. It is manifest, therefore, that a driver is required upon entering an intersection not only to look, but also to see and form an opinion as to all the factors essential to the final requirement, viz., the forming of a reasonable conclusion that the intersection can be crossed in safety. To look, yet fail to observe whether the car headed in his direction on the intersecting street is parked or moving or, if moving, then at what speed, is but little better than not to look at all. It is no better than to look and fail to see what is there to be seen or to take but a fleeting glimpse and give the approaching car no further heed. The fact, as claimed by plaintiff, that, due to the small angle, which gave plaintiff almost a head-on view of defendant's car, it was impossible for plaintiff to estimate defendant's speed or to determine whether he was moving at all, left plaintiff with no less of a duty reposing on him than that which we have held rests on the driver whose view is obstructed. While plaintiff testified that he formed the belief that he could proceed in safety, that belief was not a reasonable one because he failed to apprise himself of defendant's speed, an element absolutely essential to the formation of such a reasonable belief.

We have heretofore held that a plaintiff's failure, under such circumstances, to determine the speed of defendant's approaching automobile renders plaintiff guilty of contributory negligence as a matter of law. In Lodato v. Campbell, 284 Mich. 217, this Court said:

"Plaintiff * * * claims he looked to his left and saw defendants' car approaching from that direction, at a distance of about 500 feet and, without being able to estimate its speed, he thought he had time to cross in safety, so put his car in motion at a speed of from 7 to 8 miles per hour, and proceeded to cross the northerly lane of Grand River avenue, over which defendants' car was approaching. * * *

"Plaintiff was guilty of contributory negligence as a matter of law."

Concerning a plaintiff involved in an intersection collision we said in Ayers v. Andary, 301 Mich. 418, the following:

"On the record before us it clearly appears that the driver of the car in which plaintiff was riding was guilty of contributory negligence as a matter of law. * * *

"Under the circumstances of this case an observation of an approaching car in close proximity without giving any consideration to the rate of speed at which it is approaching was quite futile. If one is to make a proper observation of an oncoming car under the circumstances of the instant case, the observation must include not only the distance the approaching car is from the point of possible collision but also some observation and judgment of its approximate speed. This plaintiff's driver failed to do."

In another intersection collision case, Francis v. Rumsey,303 Mich. 526, we said:

"The testimony and the physical facts clearly establish that plaintiff was guilty of contributory negligence, because (1) he failed to make observation as to the speed of defendant's approaching truck and formed no opinion or judgment as to its speed. * * *

"It is apparent that plaintiff could form no rational judgment that it was safe to proceed into the intersection without first forming some opinion or judgment as to the speed of defendant's approaching truck. * * *

"Plaintiff was guilty of contributory negligence as a matter of law."

In Waskelis v. Continental Baking Co., 310 Mich. 649, we said:

"In our discussion of plaintiff's negligence, we shall assume that the trial court found plaintiff guilty of contributory negligence as a matter of law. In such cases we consider plaintiff's testimony in a light most favorable to him. He stated that he drove his car about 25 feet from the east curb line of Trumbull avenue when the collision occurred, at a rate of speed of from 5 to 10 miles per hour, without making any observation as to the speed of defendant's truck. We think the facts in this case are similar to those in Ayers v. Andary, 301 Mich. 418. In that case, the driver of plaintiff's car saw defendant's car when it was 125 to 150 feet away from the intersection, yet attempted to cross the street traveling at a speed of 18 to 20 miles per hour. When half way across the street, plaintiff again saw defendant's car 30 to 35 feet away traveling at a speed of approximately 60 miles per hour. When plaintiff first saw defendant's car he made no estimate of its speed. We held plaintiff guilty of contributory negligence as a matter of law."

In view of our decisions in the Lodato, Ayers, Francis andWaskelis Cases, plaintiff, for proceeding into the intersection without observing the speed of defendant's approaching automobile, must be held to have been guilty of contributory negligence as a matter of law.

The Chief Justice seeks to distinguish this case from the cases of Nelson v. Linderman, 288 Mich. 186; Sonfilian v.Wiedman, 291 Mich. 697; Ayers v. Andary, 301 Mich. 418, andWimmer v. Colman, 307 Mich. 413, on the ground that in those cases the plaintiffs were held guilty of contributory negligence as a matter of law only because the physical facts proved conclusively that the plaintiffs' observations as to defendants' distances and speeds were incorrect. Without giving assent to such construction on those cases, it may be pointed out that a plaintiff who makes no observation whatsoever of defendant's speed is no less guilty of contributory negligence as a matter of law than one who makes an inaccurate observation thereof.

In the Chief Justice's opinion appears the following:

"This is a two-pronged argument. * * * The second prong is that, even if plaintiff were negligent in his observation and determination that he could cross in safety, this negligence was not the proximate cause of the collision, but, rather, it was caused by defendant's subsequent negligence in swerving to the right and into a zone of apparent safety. Grodi v.Mierow, 244 Mich. 511; Swainston v. Kennedy, 253 Mich. 518;Hale v. Rogers, 244 Mich. 69; Waling v. City of Detroit,308 Mich. 163; Vukich v. City of Detroit, 318 Mich. 515."

In not one of the cited cases is the subject of subsequent negligence considered. In our opinions in the Hale andSwainston Cases not the slightest mention is made of either plaintiffs' or defendants' cars swerving to left or right. In theWaling and Vukich Cases, in stating the facts, mention is made of the defendants' cars swerving, but that fact was not even mentioned as a factor in the decision in the Vukich Case nor stressed as such in the Waling Case. That leaves the GrodiCase, to which might be added the case of Stephens v.Kaprowski, 295 Mich. 213, cited earlier in the Chief Justice's opinion. In both of these cases, as well as in the Waling Case, the defendants, after entering the intersection, swerved to their left. In the Grodi Case we therefore held that the question of plaintiff's contributory negligence was one of fact for the jury and not one of law because the plaintiff was not bound by law to anticipate that the defendant would at the last moment swerve onto his left half of the street and invade that part of the intersection where the plaintiff had a right to be and the defendant did not. In the Stephens Case we affirmed judgment for plaintiff where the trial court had denied defendant's motion for a judgment non obstante veredicto on the ground that plaintiff was not required to assume that defendant would swerve left and strike plaintiff in a part of the intersection that would have been a place of safety for plaintiff had defendant observed the law and stayed on his right half of the street. The meaning of these cases, then, is that plaintiff has the right to assume that defendant will continue to drive on his right half of the street; and that plaintiff is not required to anticipate that defendant will violate the law and swerve over onto his left half of the street. In the instant case it is plaintiff's theory that defendant, when first observed by plaintiff, was driving in the center of the street and that before the collision occurred he had turned over and continued on his right half of the street. The cited cases are not authority for the proposition that the plaintiff had a right to rely on defendant's continuing to drive in violation of the law in the center of the street or that plaintiff need not have anticipated that defendant might ultimately give heed to the law and turn back and continue on the right half of the pavement. It became plaintiff's duty, before entering the intersection, to look, observe defendant's automobile, make a reasonable estimate as to the relative distances of each of the cars from the intersection and the speed at which each was traveling, and then to form a reasonable belief as to whether he could cross the intersection in safety if defendant either continued to drive in the center of the street, as he then appeared to be doing, or turned over and continued thereafter to drive on the right half of the street as required by law. Plaintiff's failure so to do was a proximate cause of the accident. He must, therefore, be held to have been guilty of contributory negligence as a matter of law, barring his right to recovery.

The judgment entered upon the verdict in the circuit court is reversed and judgment entered on defendant's motion for judgmentnon obstante veredicto, with costs in both courts to defendant.

BOYLES, NORTH, and BUTZEL, JJ., concurred with DETHMERS, J.

SHARPE, J., did not sit.