Bartlett v. Melzo, 30

• Decision Date: 01 October 1957
• Docket Number: No. 30,30
• Citation: 351 Mich. 177,88 N.W.2d 518
• Parties: Matilda BARTLETT, Administratrix of the Estate of Charles H. Bartlett, Deceased, Plaintiff-Appellee, v. Theodore F. MELZO and Opal D. Melzo, Defendants-Appellants. ,
• Court: Michigan Supreme Court

Page 518

88 N.W.2d 518

351 Mich. 177

Matilda BARTLETT, Administratrix of the Estate of Charles H Bartlett, Deceased, Plaintiff-Appellee, v. Theodore F. MELZO and Opal D. Melzo, Defendants-Appellants.

No. 30, Oct. Term, 1957.

Supreme Court of Michigan.

March 4, 1958.

Stanton, MacKenzie, Cartwright & Walker, Saginaw, for defendants-appellants.

Harold J. Egloff, Saginaw, for plaintiff-appellee.

Before the Entire Bench.

SMITH, Justice.

This case involves another pedestrian and another automobile. The pedestrian, Charles H. Bartlett, was 76 years of age. He was crossing Hess street (which runs east and west) at the Prescott street unmarked crosswalk in the city of Saginaw. He was under the dual protection of the Commandment, 'Thou shalt not kill,' and such vestiges of § 169 of the ordinance of the city of Saginaw as remained effective after our decision in Moldenhauer v. Smith, 311 Mich. 265, 18 N.W.2d 818.

Mr. Bartlett almost made it. His foot was on the curb when he was struck and killed. The automobile involved was driven by defendant Theodore Melzo. It was engaged in a contest of sport, skill, and horsepower familiar to all of us. When the traffic light (at Robinwood street, a city block west of the Prescott street cross-walk) changed from red to green, defendant and an unidentified driver, both of whom had been waiting at the light, took off 'like a couple of horses at the starting post.' When they started, we are told, 'it seemed to raise the front of their cars and the back of their cars seemed lower (indicating with hand). They started off at quite a rate of speed.' As they proceeded towards the decedent they were, it was testified, 'going awfully fast from ths start.' Witness Eischer, who was behind defendant Melzo's car at the traffic light, testified that 'by the time I was 1/2 was between Prescott and Robinwood streets this car (Mr. Melzo's car) had already hit Mr. Bartlett. I was going 20 to 25 miles per hour. The other two cars had gone twice the distance I had gone and had started up at the same time.' As they proceeded towards the decedent they were 'jockeying for position,' back and forth. 'Number 2 (Mr. Melzo's) car would get a short distance ahead and Number 1 would catch up and so on down to the time of impact.' During all of this time the decedent was in the crosswalk. (He had reached the center of Hess street when the traffic light a block away changed.) Three hundred feet from the light, only 50 feet from decedent, the outcome of the race was still in doubt, the cars then being 'neck and neck.' We cannot record the conclusion of this race in the manner traditional to sporting contests, naming the victor, acclaiming his skill, and hailing his triumph, for in this kind of race there is no victor. The loser, however, is clearly identified. He 'had already reached the south curb with one foot when he was struck and he spun over and flopped down and that was it.' Thus, flopping in the dirt in a public street, ended 76 years of life.

But, we are told, the jury's award of damages to the administratrix of the estate of the deceased must be reversed. He was, it is urged, guilty of contributory negligence as a matter of law. Do our decisions furnish support for this contention?

The appellant-defendants' position may best be stated in their own words:

'It is conceded that plaintiff's decedent could proceed with safety to the centerline of Hess Street inasmuch as the testimony fails to establish that at the time he did so there was any traffic approaching from the east.

There is testimony to the effect that such traffic did appear while plaintiff's decedent was at the centerline of Hess Street. It is the contention of the defendants that if the plaintiff's decedent made an observation upon reaching the centerline of Hess Street as to traffic approaching from the west, that such observation was improper, or that his subsequent actions in light of that observation were such as to make him guilty of contributory negligence as a matter of law. If it be shown that the observation was not made of eastbound traffic when plaintiff's decedent was at the centerline, then defendants contend that such a failure would make plaintiff's decedent guilty of contributory negligence as a matter of law. If the plaintiff's decedent ventured into the southerly eastbound lane of Hess Street, being unable to observe what traffic was approaching, then such action would also constitute negligence as a matter of law.'

Specifically, in support of the above, appellants urge that the centerline was a place of safety, and we are cited to Moldenhauer v. Smith, 311 Mich. 265, 18 N.W.2d 818, 820, wherein it was held, as quoted by appellants: 'Plaintiff was guilty of contributory negligence, as a matter of law, in leaving a place of safety and proceeding * * * in the path of a rapidly approaching automobile.'

Is the center of the street a place of safety? Assuming it is such, is it negligent for a pedestrian to leave this haven and make for the farther side of the street? The questions presented bring squarely before us a consideration of the relative rights and duties between a motorist and a pedestrian caught in the middle when a traffic signal changes. We are not dealing with the pedestrian who steps off the sidewalk under conditions that prove immediately to be perilous. That situation has its own unique problems. Here the pedestrian is committed to the journey when the light changes. If he stays where he is, he is exposed to danger. The center of the street is no sanctuary. If he tries to return, his way may be blocked. He exposes himself, moreover, to the peculiar hazards attending any reverse movement. Can we say, as a matter of law, that the pedestrian who holds his course is proved guilty of negligence if he fails to make it, if he is struck down while still in the street?

At the common law, unaided by statute or ordinance, it was said that the rights of pedestrians and motorists at crossings were equal and that neither had a superior right over the other. Molda v. Clark, 236 Mich. 277, 210 N.W. 203. This being the case, in order to avoid being negligent it was the duty of each to exercise due care, i. e., the care of a reasonably prudent person under the same or similar circumstances. The fact that the standard of care for each was the same does not mean, however, that the amount of care necessary to be exercised by each was the same. The absolute measures of care exercised by each party, the physical requirements of caution, are vastly different because of their differing capacities to injure. The amount of care exercised in attaining the due-care standard varies in proporation to the apparent risk. Here the parties are in positions of gross inequality. The motorist has under his control an instrumentality capable of inflicting great bodily harm upon relatively slight impact, and at slight risk to himself (Patterson v. Wagner, 204 Mich. 593, 171 N.W. 356). These are 'circumstances' requiring the driver to exercise an extreme amount of care, for it is axiomatic that care must be exercised in direct proportion to one's capacity to injure. A messenger carrying a lead pencil through a crowded room is subject to the same standard of care as one carrying an open razor; he who levels a loaded machine gun at a crowed conforms to precisely the same standard as one who levels a loaded water pistol. The standard for all is the same, the standard of due care under the circumstances. Yet just as there is an infinite variety of circumstances, so there is an infinite variety in the actual amount of care to be exercised by each lest he be held negligent.

This aspect of the law of negligence has not received the emphasis demanded, by its significance, in the motorist-pedestrian cases, and this is one reason why the common-law rule of reciprocal rights and duties has not sufficed to protect pedestrians from the hazards of ever-increasing automobile traffic. Despite occasional protests by jurists that a pedestrian crossing a street is not required to 'continuously swivel his head from side to side' (Campbell v. Balis, 380 Pa. 245, 110 A.2d 254, 256), that 'pedestrians have not yet become outlaws at street crossings' (Wiest, J., in Petersen v. Lundin, 236 Mich. 590, 211 N.W. 86, 87), the toll continues to mount. We look with horror upon ancient rites involving human sacrifice. We take pride in our progression from the sacrifice of the first-born son, to the lamb, then to the abolition of sacrifice entirely, yet historians of the future may well note that it was a common sight in out cities in this era to observe the citizens of the community running for their lives, literally, if caught in the center of the street by a changing traffic light. Those not so nimble as others perish in greater numbers. The decedent whose case is before us was 76 years of age. Whether he was able to run or not the record does not disclose. When asked if the decedent began to run when the traffic started moving, as he was leaving the center of the road, a witness replied that 'the first couple of steps he walked.' The next question: 'Did he run after that? A. He speeded it up.' Not, certainly, enough.

The contest between motorist and pedestrian can have but one outcome and the toll of dead and injured in this unequal contest has become a national scandal. The 'equal and reciprocal rights' doctrine of the common law, as it has been interpreted by the courts, obviously has not served to protect pedestrians. The legislative bodies have sought other solutions, imposing even more stringent duties upon motorists, these being, in the words of the Maryland court (Webb-Pepploe v. Cooper, 159 Md. 426, 151 A. 235, 237), 'legislative recognition of the danger of vehicular traffic to pedestrians in passing across the streets of cities and towns, and an effort to diminish the number of injuries and fatalities from this source by giving the pedestrian the...