Grabowski v. Selman

Per Curiam.

These consolidated actions arose out of a collision between a Detroit police vehicle and a tractor and trailer driven by Dale Williams. The collision occurred at the intersection of Mt. Elliot and Davison Streets in Detroit on the morning of May 8, 1963. Plaintiffs, Detroit police officers, were traveling north on Mt. Elliot on an emergency run. Dale Williams, defendant Selman’s employee, was traveling west on Davison. At the conclusion of defendant’s proofs, plaintiffs moved for a directed verdict on the basis of Williams’ negligence as a matter of law. This motion was denied and the trial judge submitted the case to the jury. From a verdict of no cause of action, plaintiffs appeal.

Plaintiffs first contend that the trial court erred in submitting the issue of Williams’ negligence to the jury. We find no error, since it cannot be said upon favorable-to-defendant view of the evidence that all reasonable men would agree Williams was guilty of negligence. Ingram v. Henry (1964), 373 Mich 453. Giving the defendant the benefit of all conflicts and inferences, Blazo v. Neveau (1969), 382 Mich 415, favorable view shows that the traffic light controlling the intersection was green for Williams; that, as he approached the intersection, he was traveling lawfully. Williams’ speed was estimated by one eyewitness at 10 to 15 miles per hour. There was testimony from which the jury could find that Williams’ view toward the direction of the approaching police car was obstructed until he reached a point so near the intersection that he had very little time and distance to avoid collision with a vehicle crossing the intersection against the traffic light. Additional eyewitness testimony tended to show that the windows on Williams’ truck were closed. Moreover, Stanley Mroz testified that although he observed the police car immediately before the accident, neither the vehicle’s siren nor its flasher were operating. While this testimony was contradicted by other witnesses, it was for the jury to decide whether, in fact, the siren and flasher were working at the time. Likewise, whether Officer Perry was in the center of the intersection directing traffic to stop, as claimed by plaintiffs, and whether his presence should have been obvious to Williams were disputed factual issues for resolution by the trier.

We conclude on favorable-to-defendant view of the testimony that the question of Williams’ negligence was for the jury. City of Lansing v. Hathaway (1937), 280 Mich 87; City of Bay City v. Carnes (1966), 3 Mich App 623; cf. Archer v. Melton (1969), 15 Mich App 476; Edwards v. Kreps (1969), 17 Mich App 182.

Plaintiffs next complain of the following language in the court’s charge:

“Now, you heard some testimony of the police officer, Mr. Perry, being in the middle of the street. Just because the police officer was there does not mean that the plaintiffs, Mr. G-rabowski and Mr. Pomeroy, could go through the intersection, if they knew or should have known that an accident would happen.

“Obviously, they don’t have to do it, if the police officer waved them ahead, if they know there’s going to be an accident.”

Plaintiffs contend that this instruction was a misstatement of the law. We find no error.

Under MOLA § 257.653(b) [Stat Ann 1968 Rev § 9.2353(b)], the driver of an emergency vehicle must proceed “with due regard for the safety of all persons using the highway.” See also MOLA § 257.603(c) [Stat Ann 1968 Rev § 9.2303(c)]. What is required is reasonable care for the safety of others under all the circumstances. The challenged instruction is an obvious reference to this duty of care. By his charge, the trial judge informed the jury that one circumstance to be considered in resolving the issue of plaintiffs’ alleged contributory negligence was the presence of Officer Perry in the intersection, who, as claimed by plaintiffs, waived the approaching officers through the intersection.^** The court continued:

“That’s why I told you to place yourself in the position of Officers Grabowski and Pomeroy at that time and that place under all the circumstances then and there existing, before coming to a final conclusion.”

Considered in its entirety, the charge was a correct statement of the law.

Nor do we find the challenged instruction to be prejudicially repetitious. Eastman v. Ann Arbor Railroad Company (1966), 4 Mich App 540.

Judgments affirmed. Costs to defendant.

** Officer Perry testified at trial, however, that he did not think he waived the police car through the intersection.