Canning v. Cunningham

• Decision Date: 08 September 1948
• Docket Number: No. 52.,52.
• Parties: CANNING v. CUNNINGHAM et al.
• Court: Michigan Supreme Court

322 Mich. 182

33 N.W.2d 752

CANNING

v.CUNNINGHAM et al.

No. 52.

Supreme Court of Michigan.

Sept. 8, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Oakland County; George B. Hartick, judge.

Action by Robert S. Canning against Raymond C. Cunningham, Sr., and others for damages sustained in an automobile accident. From the judgment, defendants appeal.

Judgment affirmed.

Before the Entire Bench.

Clark C. Coulter, of Detroit (C. W. McDonnell, of Detroit, of counsel), for defendants and appellants.

William A. Ewart and A. Floyd Blakeslee, both of Pontiac, for plaintiff and appellee.

SHARPE, Justice.

Plaintiff brought an action against defendants to recover damages resulting from being struck by a motor vehicle owned by Raymond C. Cunningham, Sr., and operated by Raymond C. Cunningham, Jr.

The accident occurred on South Saginaw street in the city of Pontiac at about 9 p.m., on the evening of August 24, 1946. South Saginaw street is one of the main arterial highways in the city of Pontiac. In the center of the street are double lines of street car tracks. At the place where the accident occurred the street is 64 feet wide from curb to curb. Prospect street ends at South Saginaw street. Wilson street intersects South Saginaw street and is one blcok south of Prospect street. Raeburn street also intersects South Saginaw street and is one block north of Prospect street. Both Raeburn and Wilson streets have stop lights for the control of traffic.

At the time in question, plaintiff was about 89 years of age, in good health and did not need to use glasses except to read. He was walking on the sidewalk on the west side of Saginaw street and when he reached a point about 100 feet south of Prospect street, he began to cross over to the east side of South Saginaw street. As he came to the center of the street he was struck by a car owned by defendant Cunningham, Sr., and operated by defendant Cunningham, Jr. The car was unlighted and traveling at a speed of from 3k to 40 miles per hour. As a result of the accident, plaintiff was confined to the hospital from August 27, 1946, to January 13, 1947, when he was removed to his home. He incurred a doctor bill in the sum of $225 and a hospital bill in the sum of $880.

The cause came on for trial before a jury and at the conclusion of plaintiff's case, defendants made a motion for a directed verdict on the theory that plaintiff was guilty of contributory negligence as a matter of law in attempting to cross the street at the time and place in question. The court reserved decision on the motion and submitted the cause to the jury, who returned a verdict in favor of plaintiff in the sum of $6,000. Thereafter, defendants renewed their motion for a directed verdict which was denied by the court. After judgment was entered in favor of plaintiff, defendants made a motion for a new trial upon the grounds that the verdict was excessive and was the result of sympathy and prejudice. This motion was also denied.

Defendants appeal and urge that the trial court was in error in denying their motion for a directed verdict. The facts surrounding plaintiff's entry and passing to the center of the street are as follows:

Plaintiff in substance testified that when he got to Prospect street it was dark, the street lights were on. They were on before he left downtown. He was walking on the west side of South Saginaw street. When he decided to cross the street, he looked both ways to see the traffic. Cars were stopped at Wilson street and there were no cars between him and Wilson street. He then looked to the north and couldn't see any lights ‘just coming from the bend down on Saginaw.’ He then started to cross and got just about to the center of the street when he was knocked down. A car hit him, then somebody picked him up and took him across to the station. He did not hear any horn before he was struck and he did not see any lights of any car before he was struck.

Warren Goddard, a witness called in behalf of plaintiff testified:

‘I saw the man crossing the street come across and got to the center when the other car hit him. * * * there were no headlights on it * * * the left front fender hit him and knocked him down in the street * * * the car went around 80 feet before it was finally stopped. * * * The car that struck this man went on about 80 feet.'

Gus Cox, a witness called in behalf of plaintiff, testified:

‘The place where the man (plaintiff) was walking was south of the intersection of Prospect. At that point there is a city flood lamp up above on the street. All of the flood lights on the gas station were on and burning at the time of the accident. The car did not have lights on. I would be facing west. The man (plaintiff) who was walking across the street would be walking towards me. * * * There was no traffic when he came out on the street then this traffic let loose at the light both ways, that is at Wilson and the next street down. I am referring to the stop light at Wilson and South Saginaw streets, and the one north of the station, that is the stop light just north of Prospect Street. I identify that as Raeburn. I did see an automobile come south as this man was walking across the street. I did see something about the automobile that attacted my attention. This car was out ahead of the rest of the traffic by, I would say, about five or six car lengths. I would say the speed of the car was around 35 or 40 miles an hour. * * * This car also attracted my attention. No lights.'

John W. Emerson, a witness produced by plaintiff, testified that he was the electrical superintendent of the city of Pontiac; that there is no traffic light at the intersectionof Prospect street and South Saginaw street; that there is a traffic light at the intersection of Wilson and South Saginaw streets and one at the intersection of Raeburn and South Saginaw streets; and that Raeburn street is one block north of Prospect street.

The substance of all of this evidence considered in a light favorable to plaintiff, is that when plaintiff started to cross South Saginaw street, he looked south and saw cars stopped at Wilson avenue because the traffic signal was against them. These cars were on the east side of Saginaw street, intending to proceed in a northerly direction. Plaintiff then looked to his left and in a northerly direction and saw no cars. At the time he looked to the north, cars were stopped at Raeburn street waiting for a favorable traffic signal to allow them to proceed south. The distance from the point where plaintiff was crossing South Saginaw street to the place where cars were stopped at Raeburn street is 450 feet. There was no moving traffic in South...