Berk v. Blaha

• Court: Court of Appeal of Michigan
• Writing for the Court: T. M. BURNS; LEVIN
• Citation: Berk v. Blaha, 174 N.W.2d 870, 21 Mich.App. 83 (Mich. App. 1969)
• Decision Date: 10 December 1969
• Docket Number: Docket No. 6738,No. 2,2
• Parties: William BERK, Guardian of Cheryl Lynn Berk, a minor, and Ann T. Berk, Plaintiffs-Appellants, v. Robert BLAHA, Sr., and Robert Blaha, Jr., Defendants-Appellees

Page 870

174 N.W.2d 870

21 Mich.App. 83

William BERK, Guardian of Cheryl Lynn Berk, a minor, and Ann T. Berk, Plaintiffs-Appellants, v. Robert BLAHA, Sr., and Robert Blaha, Jr., Defendants-Appellees.

Docket No. 6738.

Court of Appeals of Michigan, Division No. 2.

Dec. 10, 1969.

Released for Publication March 11, 1970.

L. S. Charfoos, Charfoos & Charfoos, Detroit, for plaintiffs-appellants.

John D. Hayes and Joel S. Morse, Plunkett, Cooney, Rutt & Peacock, Detroit, for defendants-appellees.

Before FITZGERALD, P.J., and LEVIN and T. M. BURNS, JJ.

T. M. BURNS, Judge.

Plaintiffs were injured when the car in which they were riding failed to stop for a red flasher signal at an intersection and collided with defendants' vehicle.*

At the trial defendant was the only witness that testified as to how the accident happened and he was called by plaintiff for cross-examination pursuant to the provisions of M.C.L.A. § 600.2161 (Stat.Ann.1962 Rev. § 27A.2161). Although his testimony revealed that he did not see the plaintiffs' vehicle as it approached the intersection, he did indicate that he was traveling below the posted speed limit for that area; that he slowed his vehicle as he approached the intersection which from his direction bore a flashing amber light; and that he applied his brakes immediately upon seeing the vehicle which was then about 20 feet in front of him.

After the defendant testified the trial court granted defendant's motion for a directed verdict of no cause of action.

Plaintiffs argue on appeal that a question of fact as to defendant's negligence was raised as a consequence of the testimony, that should have been submitted to the jury. We do not agree.

The standard to be applied in cases of this type is well stated in McGuire v. Rabaut (1958) 354 Mich. 230, 236, 92 N.W.2d 299, 303:

'The favored driver is thus not required to have his car under such control as to be able to avoid collision with a subordinate driver coming illegally into his path. At what point, then, does the second principle (that of exercising reasonable care for his own protection) come into operation, requiring him to take steps to avoid collision with a subordinate driver? Only at that point when his continuing observations (which he must make, despite the fact that he is on an arterial highway) reveal, or should reveal to the reasonably prudent man, an impending danger. It is at this time that his duty of care with respect to the subordinate driver arises, and his post-observation negligence, or lack thereof, is measured by his actions after this point. Consequently, in the case before us the favored driver was entitled to assume, as he approached the Hastings intersection, that his right-of-way would not be contested by a subordinate driver. He was entitled to rely upon this assumption until it became clear to him (or, until, as a reasonable man, considering pertinent surrounding circumstances of traffic and terrain, it should have been clear to him) that a subordinate driver was going to challenge or obstruct his right-of-way. At this point his duty to attempt to avoid the impending collision began. It is from this point onward, and not before, with respect to a crossing subordinate driver appearing in his path, that we scrutinize his acts to determine whether or not he is guilty of negligence for failure to act as a reasonably prudent person, and, in all fairness to him, we must measure his conduct in the light of the emergency then presented, if not of his making.'

See also: Churukian v. LaGest (1959), 357 Mich. 173, 182--184, 97 N.W.2d 832; Haney v. Frederick v. Gentsch, Inc. (1962), 368 Mich. 354, 359--362, 118 N.W.2d 491; and DePriest v. Kooiman (1967), 379 Mich. 44, 149 N.W.2d 449.

Defendant had a right to assume that plaintiff would stop at the signal as required by law (MCLA § 257.614 (Stat.Ann.1968 Rev. § 9.2314)). Further, from the testimony in this case there is no indication that the defendant was guilty of negligence from the point that he observed that plaintiff's car was not going to stop. Therefore, there was no question of fact that could be presented to the jury and the trial court did not err in granting the directed verdict.

Affirmed.

FITZGERALD, P.J., concurs.

LEVIN, Judge (dissenting).

I am unable to concur because there was sufficient evidence upon favorable-to-plaintiffs view so that their case should have been submitted to the jury for its verdict.

The plaintiffs were passengers in a motor vehicle which collided at an intersection with the defendants' vehicle. There was a flashing light at the intersection; a red flasher faced the vehicle in which the plaintiffs were riding and a yellow flasher faced the vehicle driven by the defendant. It was stipulated that the driver of the plaintiffs' vehicle, in violation of his statutory duty, ¹ failed to stop for the red flasher. It is not claimed that the plaintiff passengers were contributorily negligent.

Under the statute, the defendant driver--who faced the yellow flasher--was obliged to 'proceed through the intersection or past such signal only with Caution.' ² (Emphasis supplied.) The question presented is whether All ³ reasonable men would agree that the defendant driver, in conformity with this statutory requirement, exercised 'caution' when he proceeded through the intersection. The plaintiffs contend that the defendant driver's failure to exercise caution was a cause of their injury, albeit not the sole cause (the apparent negligence of the driver of the car in which the plaintiffs were riding also being a cause.) ⁴

The defendant driver, the only witness who testified at the trial, said that although he looked first to his left and then to his right as he approached the intersection, he did not observe plaintiffs' vehicle. He conceded that his view of the direction from which the plaintiffs' vehicle was approaching was unobstructed for 250 feet before the intersection. He said that he first observed the plaintiffs' vehicle when it was entering the intersection 20 or 25 feet in front of him. The accident occurred at night; the defendant acknowledged that the lights of the plaintiffs' vehicle were lit.

The defendant further testified that he was traveling at less than 40 miles per hour, which meant that he had a clear view of the road over which the plaintiffs' vehicle was approaching for more than four seconds before the accident. ⁵ Since the defendant conceded that he failed to see the plaintiffs' vehicle until it was 20 or 25 feet in front of him, he failed to see the plaintiffs' vehicle although it was there to be seen. ⁶

Under the circumstances that the defendant was an interested witness, the jury could properly disbelieve his testimony even though it was uncontradicted. ⁷ He testified that he looked, did not see the plaintiffs' vehicle, but nevertheless reduced his speed and exercised care in approaching the intersection. Rejection of the defendant's exculpatory testimony would leave no evidence other than the evidence of the defendant's clear view, the time he had to act but did not act, and the fact that the plaintiffs' vehicle was there to be seen yet was not seen until a split second before the accident. The jury could reasonably infer from this evidence that had the defendant exercised due care and caution he would have seen the plaintiffs' vehicle in time to avoid the collision. That, of course, is not a mandatory inference, but it is one which the jury as trier of fact could properly draw. ⁸

No doubt many reasonable men would conclude that the defendant drove 'cautiously.' But a verdict may be directed only if all reasonable men must reach the same conclusion. I am satisfied that reasonable men could conclude that a cautious driver would have seen the plaintiffs' vehicle approaching the intersection during the four seconds preceding the accident and would have been able to prevent the accident by stopping or slowing his own vehicle.

The majority write that the 'defendant had a right to assume that plaintiff would stop at the signal as required by law' and that 'there is no indication that the defendant was guilty of negligence from the point that he observed that plaintiffs' car was not going to stop.'

If the defendant had seen the plaintiffs' vehicle slowing down with the apparent purpose of stopping he would have had the right to assume that plaintiffs' vehicle would stop at the traffic signal as required by law until, in the continuing exercise of caution, he observed the plaintiffs' vehicle depart from that apparent purpose. See DePriest v. Kooiman (1967), 379 Mich. 44, 149 N.W.2d 449. But the defendant did not see the plaintiffs' vehicle until a split second before the accident even though it was there to be seen; the defendant did not have the right to dispense with observation (and that is what the jury could properly have found occurred) on the 'assumption' that all vehicles facing red flashers will stop.

The law requires one facing a yellow flasher to exercise caution because, in part, of the danger that a driver facing a red flasher will not stop. Clearly the driver facing a yellow flasher is expected to take some affirmative action to avoid a collision at the intersection before he sees a car threatening his right of way: otherwise the State would install only red flashers--yellow flashers would be superfluous. Manifestly, the statute, in directing the exercise of 'caution' by one approaching an intersection controlled with a flashing yellow light, requires a higher degree of care than the ordinary care to be observed in driving through an uncontrolled intersection.

It is not the exercise of caution to sail blindly into an intersection controlled by a yellow flasher on the 'assumption' that intersecting traffic will stop and not challenge one's right of way, until one happens to see another car proceeding in a manner inconsistent with that inordinate assumption.

The majority rely upon ...