Barron v. City of Detroit

• Decision Date: 22 April 1957
• Docket Number: No. 83,83
• Citation: 82 N.W.2d 463,348 Mich. 213
• Parties: Cora BARRON, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Department of Street Railways, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 463

82 N.W.2d 463

348 Mich. 213

Cora BARRON, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Department of Street Railways, Defendant and Appellant.

No. 83.

Supreme Court of Michigan.

April 22, 1957.

James S. Shields, Ralph L. Hayes, Detroit, A. Albert Bonczak, Detroit, of counsel, for defendant and appellant.

Charfoos, Gussin, Weinstein & Kroll, Philip Weissman, Detroit, for plaintiff and appellee.

Before the Entire Bench except BOYLES and VOELKER, JJ.

BLACK, Justice.

Our decisions, apparently, are destined in definable instances to travel a cyclic course. This case, like impending return to earlier interpretations of the Workmen's Compensation Act, Comp.Laws 1948, § 408.1 et seq., becomes as wholesome restoration of tried and dependable first principles of negligence law.

Conventional traffic control signals came to us following advent of the automobile and its paved way of travel. Originally, and I think rightfully so, this Court held that one undertaking to cross a street or highway by signaled permission of such a device is not required--as a matter of law--to assume that one in charge of a powered vehicle, approaching the device on an intersecting way, will do other than heed the legal command. Indeed, it was said on that occasion that the person engaged in such permitted crossing has good reason to believe he is protected from danger, 'by the red light', so far as concerns traffic approaching such light, Travis v. Eisenlord, 256 Mich. 264, 239 N.W. 304. The rule is both sensible and necessary. It is taught with religious repetition in home and kindergarten and has become a generally understood regulation of human conduct.

That we have temporarily deviated from Travis is apparent on examination of Morse v. Bishop, 329 Mich. 488, 45 N.W.2d 367. That we stand deadlocked, upon right of trial by jury in cases of present nature, becomes evident on examination of Ortisi v. Oderfer, 341 Mich. 254, 67 N.W.2d 153 and Buehler v. Beadia, 343 Mich. 692, 73 N.W.2d 304. It is high time, I think, that we return to the doctrine so enunciated in Travis. Such is at least explainable to the reasonable and intelligent lay mind. Law not so explainable[348 Mich. 217] --the Morse Case is an example--is not good law.

In all negligence cases, brought here to review grant or dinial of motion for instructed verdict addressed to contributory negligence, we search the record to determine whether, as a matter of law, the plaintiff has failed to prove that the exercised ordinary care. Because 'ordinary care is the care exercised by the great mass of mankind,' Sonsmith v. Pere Marquette R. Co., 173 Mich. 57, 90, 138 N.W. 347, 361; 65 C.J.S., Negligence, § 11, p. 392, we shall rarely find the elusive object of our search excepting we arbitrarily insist on doing so from our own 'experience, training and temperament', the known and unknown veriables being what they are, 3 Cooley on Torts, 4th Ed., p. 389; Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99. Our competence in such regard fades when arrayed against the comparably better experience and judgment of 12 citizens of the community who, literally, are 'on location'. Who knows best the degree of care most pedestrians--the great mass of mankind--habitually exercise at busy and signal-controlled Detroit intersections? Eight cloistered gentlemen of the law whose direct fact-knowledge must of necessity be derived from second hand worth of printed pages, or a jury of Detroit housewives, clerks, wage earners and provincial citizens having regular occasion to use such intersections for motoring and pedestrian travel? I answer that in all but the rarest of cases the former are less apt to be rightly equipped to decide such an issue. Mr. Justice Cooley proceeds with the syllogism this way, at page 120 of Van Steinburg report:

'For, when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff's conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that, if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that to be a question of fact which the first has ruled to be one of law. Indeed, I think the cases are not so numerous as has been sometimes supposed in which a judge could feel at liberty to take the question of the plaintiff's negligence away from the jury.'*

The same reasoning, taken from Van Steinburg, see Thompson v. Michigan Cab Co., 279 Mich. 370, 374, 272 N.W. 710, was adopted many years ago by the federal supreme court in Sioux City & Pac. R. R. Co. v. Stout, 17 Wall. 657, 84 U.S. 657, 21 L.Ed. 745. The following is quoted from pages 663 and 664 of 84 U.S. report of the Stout Case:

'Certain facts we may suppose to be clearly established from which one sensible, impartial man would infor that proper care had not been used, and that negligence existed; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain.'

This unfortunate accident occurred while the plaintiff was crossing one of the busy street interections of Detroit. Whether, tested by this motion for instructed verdict, Cora Barron was engaged in the exercise of ordinary care, proceeding as she was with permission and authority of the then green traffic signal, was at best a question upon which reasonable men--I repeat 'reasonable men'--might well differ. If so, and such is our heralded guide, Thompson v. Michigan Cab Co., supra, the trial judge was right in...