Carey v. Derose, 36.

• Decision Date: 10 November 1938
• Docket Number: No. 36.,36.
• Citation: 286 Mich. 321,282 N.W. 165
• Parties: CAREY v. DeROSE.
• Court: Michigan Supreme Court

286 Mich. 321

282 N.W. 165

CAREY

v.DeROSE.

No. 36.

Supreme Court of Michigan.

Nov. 10, 1938.

Action by Pauline Carey, administratrix of the estate of James W. Carey, deceased, against Frank DeRose for the death of plaintiff's intestate resulting from an automobile collision at a highway intersection. Judgment for the defendant, and plaintiff appeals.

Affirmed.

SHARPE, J., dissenting.

Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench, except McALLISTER, J.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids (Phil R. Johnson, of Grand Rapids, of counsel), for appellant.

Kelley, Sessions, Warner & Eger, of Lansing, for appellee.

WIEST, Chief Justice.

The judgment should be affirmed.

Mrs. Carey, driver of the car in which the deceased was riding, according to her own version, looked before entering the intersection, had an extended view, saw no car approaching and without any distracting circumstances and without further observation entered the intersection and her car was struck.

Mrs. Carey testified:

‘I stopped my car about a car length and a half to the south of the fence on the south side of the road. * * *

‘The front end of my car was 18 to 20 feet south of the fence on the south side of the road. At that time I had an unobstructed view to my right of the truck line highway. I could see to the top of the hill that was east.

‘Q. How far was it in the intersection when you looked the last time? A. It was back where I stopped.

‘Q. So the last time you looked to your right, that was just before you started up, or just while you were starting up? A. Yes.

‘Q. You did not look again until the impact of the cars? A. No, because there was not anything in sight.

‘Q. I say you did not look again until the accident occurred. A. No.’

We have repeatedly held that one must look before entering a place of possible danger, such as crossing an intersection, and maintain observation while crossing.

Mr. Justice Sharpe, in writing the opinion of the court in Knight v. Merignac, 281 Mich. 684, 275 N.W. 732, quoted, with approval, the following from Zuidema v. Bekkering, 256 Mich. 237, 239 N.W. 333:

‘It will not do to say that plaintiff's husband looked down the Byron Center road to the left before attempting to cross the pavement and did not see the automobile of defendant approaching. He must be held to have seen that he should have seen, which there was nothing to prevent him from seeing, and if, as contended by plaintiff, he stopped his automobile, looked to the left, and did not see what was plainly to be seen, the approach of defendant's automobile, he was guilty of contributory negligence which would bar plaintiff's recovery.’ [page 733.]

In Brown v. Lilli, 281 Mich. 170, 274 N.W. 751, Mr. Justice Chandler, in writing the opinion, said [page 752]:

‘The accident occurred in the day time, and the facts display nothing to indicate that plaintiff could not have seen defendant's approaching automobile had she made proper observation before attempting to cross the pavement. On the contrary, it stands undisputed that she could have had a clear unobstructed view of the road and could have seen defendant for a distance of 1215 feet. Although she testified that she did look and saw nothing, if she looked and failed to see that which was plainly visible, she will be held in point of law to have seen it and guilty of contributory negligence. Molda v. Clark, 236 Mich. 277, 210 N.W. 203;Neeb v. Jacobson, 245 Mich. 678, 224 N.W. 401.’

In Kok v. Lattin, 261 Mich. 362, 246 N.W. 149, it was said:

‘Had the defendant looked he could have seen the plaintiff before and when he entered the intersection. Had the plaintiff looked he would have seen the defendant in time to have avoided the collision. He testified that he did look, and saw no car approaching. His testimony in this respect is contrary to the physicial facts. As his view was unobstructed and the defendant's car was there in plain sight, it must be held that he did not look. If he had looked, he would have seen what was there to be seen. The two cars reached the intersection at about the same time. If either had looked, he could have avoided the accident. Failure to look was negligence. The undisputed material facts left no question for the jury.’

See, also, Halzle v. Hargreaves, 233 Mich. 234, 206 N.W. 356;Richardson v. Williams, 249 Mich. 350, 228 N.W. 766;Kerr v. Hayes, 250 Mich. 19, 229 N.W. 430;McKelvey v. Hill, 259 Mich. 16, 242 N.W. 822; Brodie v. City of Detroit, 275 Mich. 626,267 N.W. 579;Young v. Martinich, 279 Mich. 267, 271 N.W. 753;DeCoopman v. Hammond, 279 Mich. 619, 273 N.W. 290;Wells v. Oliver, 283 Mich. 168, 277 N.W. 872;Slingerland v. Snell, 283 Mich. 524, 278 N.W. 672.

Had Mrs. Carey looked while crossing the intersection it is manifest that she would have seen the approaching car in ample time to have avoided the collision. If defendant's negligence and Mrs. Carey's want of reasonable care occasioned the collision, then, under the law of imputed negligence, there can be no recovery in behalf of decedent's estate. The unquestioned carelessness of Mrs. Carey was a question of law and not for consideration of the jury.

BUSHNELL, POTTER, CHANDLER, and NORTH, JJ., concurred with WIEST, C. J.

BUTZEL, J., took no part in this decision.

SHARPE, Justice (dissenting).

Plaintiff, Pauline Carey, brought this action as administratrix of the estate of her husband, James W. Carey, deceased, to recover damages under the survival act (3 Comp.Laws 1929, § 14040) for death of deceased resulting from an automobile collision at an intersection of a country highway in Kent county and M-114 on October 9, 1935, at about 4:30 p. m.

Pauline Carey driving a 1930 Ford coupe was traveling in a northerly direction on a gravel road 18 feet wide which intersects at right angles with M-114 another gravel road 30 to 35 feet wide. Mrs. Carey and her stepson were riding in the front seat and her husband, decedent, was in the rumble seat.

When Mrs. Carey drove up to the intersection she came to a full stop about a car length and a half south of the fence on the south side of M-114, which fence is 12 feet from the southerly edge of M-114. She looked to the east, then to the west and then to the east again. At the place where Mrs. Carey stopped her car she had an unobstructed view to the east to the top of a hill, a distance of approximately 1175 feet. She saw no cars. She then shifted into low gear and proceeded to cross the highway. During her progress across the highway, she shifted the car into second gear and was substantially across the highway when struck by defendant's car which was approaching from the east.

Defendant was driving an eight cylinder Auburn car equipped with four-wheel brakes. As a result of the collision the cars ended up in the northwest corner of the intersection after each car had overturned several times. James W. Carey was severely injured and lived but a few minutes after the accident. Defendant's car struck the Carey car on the right hand side between the door and back end of the car.

When the cause was tried and at the close of plaintiff's proofs, defendant made a motion for a directed verdict on the ground that Mrs. Carey was guilty of contributory negligence. The motion was taken under advisement under the authority contained in 3 Comp.Laws 1929, § 14531. The jury returned a verdict for plaintiff. Subsequently, the trial court granted defendant's motion. Plaintiff appeals.

Defendant contends that Mrs....