Carrothers v. French

• Court: Michigan Supreme Court
• Writing for the Court: STARR
• Citation: Carrothers v. French, 309 Mich. 340, 15 N.W.2d 662 (Mich. 1944)
• Decision Date: 11 September 1944
• Docket Number: No. 14.,14.
• Parties: CARROTHERS v. FRENCH.

309 Mich. 340

15 N.W.2d 662

CARROTHERS

v.FRENCH.

No. 14.

Supreme Court of Michigan.

Sept. 11, 1944.

Action by Herbert M. Carrothers against W. W. French for injuries suffered in automobile collision, wherein defendant filed cross declaration for damages. From a judgment on a verdict of no cause of action against each party, plaintiff appeals and defendant cross-appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Lester S. Moll, judge.

Before the Entire Bench.

Warning & Platt, of Detroit (Charles A. Bennett, of Detroit, of counsel), for plaintiff.

Earl J. Demel, of Detroit (Arthur C. Lumley and William J. Eggenberger, both of Detroit, of counsel), for defendant.

STARR, Justice.

This case involves an automobile accident which occurred about 5 o'clock in the afternoon of September 16, 1942, at the intersection of through highway US-12 and Ann Arbor Trail road, near the city of Plymouth. Suit was begun and trial had in the common pleas court of Detroit, and on appeal by defendant to the circuit court for Wayne county was retried de novo. Plaintiff asserted claim for damages which he alleged resulted from defendant's negligence. Defendant filed cross-declaration claiming damages which he alleged resulted from the negligence of the driver of plaintiff's car.

At the conclusion of all proofs plaintiff moved for a directed verdict against defendant on his cross-declaration, on the ground that he was guilty of contributory negligence as a matter of law. The trial court reserved decision on such motion and submitted the case to the jury, which returned a verdict of no cause of action against each party. Judgment was entered on such verdict, plaintiff's motion for a new trial was denied, and he appeals. Defendant cross-appeals.

US-12 is a cement-paved, through highway, 24 feet wide, running east and west. Ann Arbor Trail road is tarvia surfaced to a width of 20 feet and runs in a southeasterly and northwesterly direction. The intersection of the two roads resembles an X with the greater or obtuse angles on the northeasterly and southwesterly segments of the intersection. Plaintiff's car, driven by his 21-year-old son, was proceeding east on US-12 and approached the intersection at a speed variously estimated at 45 to 60 miles an hour. Defendant, driving his Ford pick-up truck in a northwesterly direction on the Ann Arbor Trail road, approached the intersection at a speed of about 35 miles an hour, but stopped before entering the intersection. The day was clear, the roadways were dry, there was no interfering traffic, and the view of each driver was unobstructed.

After passing a car driven by witness Austin, at a point 600 feet or more west of the intersection, plaintiff's driver did not return to his right side of the road but proceeded toward the intersection straddling the center line. He testified that when he was 300 to 400 feet west of the intersection, he observed defendant's car 50 to 60 feet south of the intersection; that he did not see defendant's car stop, but admitted, ‘Perhaps he did. I didn't see him stop.’ Though his view was unobstructed, plaintiff's driver did not make further observation until about 50 feet from the intersection, when he saw defendant's car proceeding slowly across in front of him. He said that he swerved to the left onto the north (wrong) side of the highway to avoid a collision. He admitted that he was familiar with the highway and intersection; that he did not sound his horn, apply his brakes or reduce his speed. Witness Austin testified that plaintiff's car was approximately 90 feet from the intersection when defendant started across.

Defendant testified that he stopped his car before entering the intersection; that he observed the highway to the left and right; that he saw the car of witness Austin about 750 feet distant approaching from the left (west) and the car of witness Stamper about 250 feet distant approaching from the right (east); that he made no further observation and proceeded across the intersection in low gear at a speed of 10 to 15 miles an hour; and that while crossing the intersection, he could have stopped his car within three or four feet. Defendant said that he did not see plaintiff's car until it was directly in front of him. He testified in part:

‘Q. Did you see that car at any time except just before the impact took place? A. I did not. I never saw that car until it was right in front of me. * * *

‘Q. You came to the road and * * * stopped and looked? A. Looked up and down the road. I seen the traffic was clear and proceeded across the road. * * *

‘Q. Did you look to your left again after you observed that car (witness Austin's car) coming out of the bend on the straightaway the first time? A. No.'

The cars collided in the northeast portion of the intersection, at a point about three feet from the north line of US-12. The front of defendant's car struck the right side of plaintiff's car near the front wheel. Defendant's car remained on the highway near the place of impact, while plaintiff's car continued on out of control for 100 feet or more.

Assuming, for the purpose of this opinion, that defendant was negligent, the first question presented is whether or not plaintiff's driver was guilty of contributory negligence barring recovery. Plaintiff contends in substance that because his car was on a through highway, his driver was free from contributory negligence as a matter of law. We cannot agree with such contention. Although he was driving on a through highway, it was the duty of plaintiff's driver to make proper observation of traffic approaching on intersecting highways and to use reasonable care and caution to avoid an accident. In the case of Kerns v. Lewis, 246 Mich. 423, at pages 426, 428, 224 N.W. 647, at page 648, Mr. Justice Wiest, writing for the court, said in part:

‘Plaintiff was driving east on a trunk line highway, and defendant's car was being driven north on an intersecting highway. * * *

‘Plaintiff invoked the right of way accorded by law to users of a trunk line highway and the assurance of safety thereunder. While the law accords the right of way, it requires as well, the exercise of at least ‘horse sense.’ The statute does not authorize one, in approaching a highway crossing, to assume that in all events he may proceed without looking, or, if unable to see, without exercising precaution commensurate with reasonable prudence.'

In the case of Adams v. Canfield, 263 Mich. 666, 248 N.W. 800, 801, we said: ‘A rate of speed on a through highway of 45 or more miles per hour is not illegal nor excessive nor uncommon. It is quite ordinary. A driver desiring to cross such road must anticipate fast traffic on it, and, when the range of his vision is limited, he cannot always assume that a single observation will disclose the situation and all of its probabilities and proceed as though there were no cars on the road within colliding distance. On the other hand, he may assume that a driver on the through highway,...