Birkhill v. Todd, Docket No. 5879

CourtCourt of Appeal of Michigan (US)
Citation174 N.W.2d 56,20 Mich.App. 356
Docket NumberDocket No. 5879,No. 1,1
PartiesRalph BIRKHILL, Plaintiff-Appellant, v. John TODD, Defendant-Appellee
Decision Date03 December 1969

Bernard J. Fieger, Detroit, for appellant.

Charles T. McGorisk, Detroit, for appellee.


LESINSKI, Chief Judge.

Plaintiff Ralph Birkhill brought action against defendant John Todd to recover damages allegedly caused when plaintiff was struck by an automobile driven by defendant while walking across a street. Following plaintiff's proofs, defendant moved for a directed verdict. The motion was granted and plaintiff appeals.

Following the well-settled rule that on a defendant's motion for a directed verdict the facts must be viewed most favorably for the plaintiff, 1 we set forth the facts. The incident out of which this case arose occurred on West Grand Boulevard between Second and Third Avenues in the city of Detroit. The Boulevard consists of eight lanes, four eastbound and four westbound with the two directions separated by a traffic island. The lanes are marked by white painted strips and each lane is 10 feet wide. The most northerly of the westbound lanes 2 is used for parking and the remaining three for traffic.

On March 16, 1963, a rainy day, plaintiff parked his car on the north side of the boulevard and walked eastward along the sidewalk until he was opposite a paved crossover area on the traffic island. As he stood at this point he waited for a funeral cortege in the third lane to stop for a red traffic signal at Third Avenue. After it had come to a stop and the traffic in lane two had cleared, plaintiff walked at a normal gait between the parked cars in lane one, crossed lane two, which was empty, and between two cars in the funeral procession in lane three. He then stopped approximately a foot beyond the cortege and two or three feet away from the fourth lane.

Plaintiff made no observation of traffic in the fourth lane as he stood next to the cortege. Rather he watched the red traffic light at Third Avenue. He stood in this position for 30 to 40 seconds then looked around to his left. As he glanced to the left he saw a 'motion' and then was struck by defendant's car.

The trial judge concluded that plaintiff was contributorily negligent as a matter of law for standing in the third lane for 30 to 40 seconds without making an observation of the traffic in the fourth lane. Plaintiff appeals from the directed verdict.

The central issue raised on appeal is the propriety of the lower court's conclusion that plaintiff was guilty of contributory negligence as a matter of law.

The duty of a pedestrian in crossing a street was stated in Malone v. Vining (1946), 313 Mich. 315, 321, 21 N.W.2d 144, 146:

'Under present-day traffic conditions a pedestrian, before crossing a street or highway, must (1) make proper observation as to approaching traffic, (2) observe approaching traffic and form a judgment as to its distance away and its speed, (3) continue his observations while crossing the street or highway, and (4) exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances.'

Paralleling these duties is the requirement that automobile drivers must notice persons in the street, 3 must use reasonable and ordinary care not to run down pedestrians on the highway, 4 must obey statutes governing the use of automobiles, 5 and as was stated in Schock v. Cooling (1913), 175 Mich. 313, 323, 141 N.W. 675, 678:

'It is well settled by abundant authority that it is negligence for the driver of a conveyance, having ample space to pass a pedestrian on a highway, to so guide his vehicle as to strike the latter in passing.'

A number of cases are cited by defendant for the proposition that plaintiff was negligent in not observing the traffic in the fourth lane. The authorities cited, however, all involve a pedestrian walking into the path of a moving vehicle without making the necessary observation, rather than a vehicle shifting lanes to strike a pedestrian standing in an adjacent lane. In Green v. Wallace (1965), 376 Mich. 113, 135 N.W.2d 408, plaintiff 'had crossed the 10-foot westerly lane And gone about 3 or 3 1/2 feet into the easterly lane before he again looked to the north and saw defendant's car, for the first time, approaching him in the easterly lane within 5 feet north from him, just an instant before it struck him.' (Emphasis supplied.) Shafkind v. Kroll (1962), 367 Mich. 42, 116 N.W.2d 58; Conant v. Bosworth (1952), 332 Mich. 51; and Norwicki v. Suddeth (1967), 7 Mich.App. 503, 152 N.W.2d 33, also involve movement with continued observation.

Under the facts of this case plaintiff stood in the lane occupied by the funeral cortege, which had stopped for a traffic signal. As long as he remained outside the fourth lane and made no attempt to enter it, reasonable minds might conclude that his concern should have been with the possibility that the funeral cortege might begin to move and the danger inherent in such movement. For as long as he remained in the third lane, his source of peril centered in the cars in that lane. Thus, it could be reasonably concluded that plaintiff's attention should have been, as it was, with the traffic light which controlled the movement of the cortege.

Moreover, a reasonable mind could conclude that plaintiff was not negligent in his belief that as long as he remained in a lane already occupied by a line of cars, he stood in a position of safety in relation to potential traffic in the fourth lane. M.C.L.A. § 257.642 (Stat.Ann.1968 Rev. § 9.2342), states in pertinent part:

'Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

'(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.'

From the facts presented defendant of necessity had to have violated the statute in order to hit plaintiff. In Holmes v. Merson (1938), 285 Mich. 136, 280 N.W. 139, the Court applied the statutory duties to drive on the right half of the highway and to control the car so as to be able to stop within an assured clear distance ahead in favor of pedestrians. There the Court held at p. 140, 280 N.W. at p. 140:

"While in some cases involving the statute the violation has been spoken of as 'evidence of negligence,' we think there has been no intention to depart from the rule that a violation of a statute imposed under the police power of the state is negligence Per se."

While a pedestrian is charged with the duty of ordinary care, he has the right to assume that a driver of an automobile will not be negligent. Pearce v. Rodell (1937), 283 Mich. 19, 276 N.W. 883. 6

In Wallace v. Kramer (1941), 296 Mich. 680, 296 N.W. 838, plaintiff had come to a complete standstill, prior to crossing the center line of the road, to wait for the westbound traffic to clear, when a westbound car crossed the center line and hit him. The language of the Court at p. 689, 296 N.W. at p. 841, is applicable to the instant case:

'It is further claimed that plaintiff was guilty of contributory negligence. Plaintiff had a right to cross the street in the center of the block notwithstanding the fact that he knew it was a busy thoroughfare and there was heavy traffic at the time. He came to a standstill in a place of safety where he and not the defendants had a right to be. It is not a case of plaintiff walking into the pathway of oncoming cars. He had reached a place of comparative safety and stood still until he was struck down through no fault of his own. He had as much right upon the street as an automobile. * * * He was not guilty of contributory negligence as a matter of law.' (Citations omitted.)

As we conclude that reasonable minds could differ, we reverse and remand for a new trial. In reversing we are not unmindful of Justice Black's admonition in Barron v. City of Detroit (1957), 348 Mich. 213, 217, 82 N.W.2d 463, 464:

'In all negligence cases, brought here to review grant or denial 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 he exercised ordinary care. * * * 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.' 7

Plaintiff also appeals adverse rulings by the trial court in two evidentiary matters. The first concerns several photographs of the accident scene which plaintiff sought to have admitted. The trial court refused admission on the grounds that the photographs were not faithful representations of the scene as it existed on the day of the accident.

The photographs were taken more than five years after the accident. They were taken on a sunny day although the accident took place on a rainy day when the road was wet and slick. The pictures did not have a long line of traffic in the third lane, as existed at the time of the accident due to the presence of the funeral cortege. Based on these differences the trial...

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