Ayers v. Andary

• Citation: 301 Mich. 418,3 N.W.2d 328
• Decision Date: 15 April 1942
• Docket Number: No. 39.,39.
• Parties: AYERS v. ANDARY.
• Court: Supreme Court of Michigan

301 Mich. 418

3 N.W.2d 328

AYERS

v.ANDARY.

No. 39.

Supreme Court of Michigan.

April 15, 1942.

Action by Ruth N. Ayers against Jacob A. Andary for injuries sustained in automobile accident. From a judgment on a verdict for the plaintiff, the defendant appeals.

Reversed and judgment entered on defendant's motion for judgment notwithstanding the verdict.

BUSHNELL and STARR, JJ., dissenting.

Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Before the Entire Bench, except WIEST, J.

Kelley, Eger & Kelley, of Lansing, for defendant and appellant.

Fred L. Warner, of Lansing, for plaintiff and appellee.

NORTH, Justice.

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; and such contributory negligence is imputable to plaintiff. Defendant's motions for a directed verdict and later his motion for judgment notwithstanding the verdict should have been granted. On such a record I cannot concur in affirmance of judgment for plaintiff.

Plaintiff's driver, Russell Clements, was proceeding in an easterly direction on a paved street which was 24 feet wide. Defendant was driving in a northerly direction on an intersecting paved street which was 30 feet between the curbs. The accident happened in the afternoon of a pleasant day, the pavements were dry, the traffic was light, and no distracting circumstances were present at the time of the accident. Plaintiff's driver was familiar with the locality, having formerly lived in the neighborhood. The two streets intersect at right angles, and as the two vehicles approached the intersection there was ‘nothing at all’ to obstruct the view of the respective drivers. Neither of these streets was a stop street. Plaintiff's driver slowed down approximately 5 miles an hour before entering the traveled portion of the intersecting street, and at that time he saw defendant's car approaching from 125 to 150 feet south of the intersection. Plaintiff's driver proceeded and increased his rate of speed to 15 miles per hour, possibly to 18 or 20 miles at the point of impact. Upon making a second observation to his right just before the instant of collision, plaintiff's driver again observed defendant's car approaching and, according to plaintiff's witnesses, it was traveling at least ‘60 miles an hour’. However, witnesses for defendant testified that defendant's car was approaching at a slower rate of speed, 15 to 25 miles per hour. As they approached the intersection each of the drivers of the autos involved in the accident saw the other vehicle traveling towards the intersection. Notwithstanding this each proceeded to the point of the impace with exactly the consequences which should have been foreseen by both of them.

It is true plaintiff testified that practically at the time the car in which she was riding was entering the traveled portion of Logan street she observed defendant's car ‘perhaps 125 feet’ south of the intersection and that while she was not able to judge the speed of defendant's car, ‘it seemed for enough away’, and thus inferring that plaintiff's driver was justified in proceedingacross the intersection because, as plaintiff testified: ‘There was nothing about the speed of the (Andary) car at that time to attract your (her) attention.’ Apparently the case sought to be made is one wherein plaintiff or her driver made an observation, formed a rational judgment it was safe to proceed, but was mistaken; and therefore it is urged the issue of contributory negligence was for the jury. One may not escape the consequences of his own negligence on such a claim or theory in a case where all the physical facts conclusively establish that by proceeding into the path of an oncoming automobile plaintiff's driver was taking a chance which no one in the exercise of ordinary care and caution should take. It overtaxes one's credulity and belies the physical facts, under the circumstances of the case, to conclude that these two approaching vehicles were driven to the point of collision except each of the drivers was negligent.

The only fair and reasonable construction that it is possible to place upon the record before us is that while plaintiff's driver was just about to enter the intersection of Logan street he slackened the speed of his car about 5 miles per hour, made an observation to his right and saw defendant's car approaching at a distance of 125 to 150 feet south of the intersection; but so far as disclosed by any testimony in the case he made no observation of the rate of speed defendant's car was traveling. Touching this phase of the case plaintiff's driver testified:

‘Q. When you observed Mr. Andary's car approaching, if you did, then that car was travelling more than three times as fast as you? A. When I slowed up the first time--

‘Q. Just a minute-- A. I have got to say I don't know.'

Later, and when defendant's car was approximately 30 feet from the point of impact and after it was too late to avoid the collision, plaintiff's driver made a second observation and according to his testimony defendant's car was then approaching at a speed of ‘at least 60 miles an hour’. Obviously the first observation made by plaintiff's driver of defendant's car amounted to no more than a fleeting glance of the oncoming car without forming any judgment whatever as to the rate of speed at which it was approaching. 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 Nelson v. Linderman, 288 Mich. 186, 284 N.W. 693, 694, we said: ‘In the case at bar, plaintiff had to travel a distance of approximately 35 feet in order to get to a place of safety. He could stop his car within a distance of 4 or 5 feet. Under the circumstances in this case, plaintiff driver's failure to make any observations while he was traveling the last 25 feet precludes recovery. Something more than a fleeting glance at an approaching car is necessary if plaintiff seeks to avoid the burden of contributory negligence.'

In the recent case of Sonfilian v. Wiedman, 291 Mich. 697, 289 N.W. 300, 301, we said: ‘In many cases we have held that one is not free from contributory negligence who observes an automobile coming on the intersecting street and then proceeds to cross without giving further heed to the oncoming vehicle until the instant before or at the time of collision, Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618;Koehler v. Thom, 285 Mich. 593, 281 N.W. 336.'

This is not a case wherein distracting circumstances, adverse driving conditions, unforeseen or unanticipated conditions or circumstances resulted in a collision. Instead, it is a case wherein two drivers in broad daylight, with unobstructed view of each other, each with knowledge of the other's approach, in reckless disregard of their own safety and the safety of others in the vehicle, proceeded with disastrous results to the point of collision. Each driver was negligent.

While, as is to be expected, the facts vary from those of the instant case, the controlling legal principle and its application in this field of the law have been adhered to in so many of our decisions it would be futile to cite all of them. The following are among the more recent: McKelvey v. Hill, 259 Mich. 16, 242 N.W. 822;Smith v. Wassink, 262...