City of Dearborn v. Bacila, 38

• Citation: 90 N.W.2d 863,353 Mich. 99
• Decision Date: 12 June 1958
• Docket Number: J,No. 38,38
• Parties: CITY OF DEARBORN, a Michigan Municipal Corporation, Plaintiff and Appellant, v. Eli BACILA, Defendant and Appellee. anuary Term.
• Court: Supreme Court of Michigan

Page 863

90 N.W.2d 863

353 Mich. 99

CITY OF DEARBORN, a Michigan Municipal Corporation, Plaintiff and Appellant, v. Eli BACILA, Defendant and Appellee.

No. 38, January Term.

Supreme Court of Michigan.

June 12, 1958.

Dale H. Fillmore, Corporation Counsel, Carl P. Garlow, Asst. Corporation Counsel, Dearborn, for appellant.

Cary & BeGole, by Robert B. Campbell, Detroit, for appellee.

Before the Entire Bench.

CARR, Justice.

This case has resulted from a traffic accident occurring in the city of Dearborn on the 17th of April, 1955, at approximately 1 o'clock in the morning. On the occasion in question a member of the police department of the city was driving an automobile owned by plaintiff in a northerly direction on Miller Road. At the intersection of said highway with Eagle Street, or Eagle Pass, the police car collided with an automobile operated by the defendant. Claiming that the latter was at fault in the matter, an action was brought in the municipal court of the city for damages, recovery of the alleged amount thereof in excess of $1,000 being waived. The declaration filed alleged negligence on the part of the defendant in making a left turn without proper observations, and in proceeding against a red light. To the declaration defendant filed a plea of the general issue, reserving therein the right to file at a later date a detailed answer to plaintiff's pleading. It does not appear from the record, however, that this was done. The trial in the municipal court resulted in a judgment for plaintiff, from which defendant appealed.

In the circuit court the parties to the cause waived the right to a jury trial, and the matter was heard before the circuit judge. In support of its claim plaintiff introduced the testimony of the police officer, Harold Monberg, who was driving the automobile, and also produced as a witness another officer who was riding in the car at the time of the accident. At the conclusion of plaintiff's testimony counsel for defendant made a motion for judgment 'on the basis of the plaintiff's proofs.' In support of said motion it was claimed specifically that officer Monberg, in the operation of plaintiff's vehicle, failed to make proper observations as he entered the intersection, and prior thereto, that had he exercised due care in such respect he would have been in position to avoid the accident, ant that, in consequence, on the basis of the proofs submitted plaintiff was not entitled to recover. The motion was granted for the reason asserted by defendant's counsel in his motion, and for the further reason that plaintiff had not introduced proof as to the amount of damages sustained by it. Judgment in defendant's favor was entered accordingly, and plaintiff has appealed.

At the time of the accident Miller Road was a divided north and south thoroughfare, with three lanes for northbound traffic and like provision for southbound traffic. North and south of Eagle Pass the two sections of the highway were separated by a so-called island, approximately eight feet in width. In the center of said intersection was a concrete structure on which was located a traffic light. It may be noted in this connection that the intersection was at the time of the occurrence in question protected by three signal lights designed to regulate traffic passing through it.

Plaintiff's proofs indicated that the police car approached the intersection at a rate of speed of approximately 35 miles per hour, that officer Monberg did not decrease said rate as he entered and attempted to pass through the intersection, and that he did not see defendant's car until it appeared directly in front of him in the middle lane for northbound traffic. In view of the manner of disposition of the case the testimony of officer Monberg becomes of controlling significance. After testifying that as he approached the intersection he noted that the traffic light was red against northbound traffic on Miller Road, and that three cars were standing at the intersection waiting for the signal to change, the following testimony indicates the situation that the witness claimed existed immediately prior to and at the time of the collision between the cars:

'Q. What did you do when you saw these three cars waiting for a red light, officer, in front of you, that is? A. I think, to make it simple, I was about 150 feet behind the intersection. The three cars were lined up, stopped for the red light. The light turned green and these three cars proceeded on across the intersection on the green light, and I continued my course, going north.

'Q. Did these cars start up and proceed through the intersection before you arrived at the intersection? A. Yes.

'Q. So then we now have your car here, with a light green, and three cars clear ahead of you. They have gone on beyond you, is that right? a. Yes.

'Q. Now, tell us what happened as you arrived at the intersection? A. As I entered the intersection on the green light, a car coming south on Miller Road made a fast turn in front of me and a collision occurred. * * *'

Following an explanation by the witness as to where the cars were at the time of the collision, he continued his testimony as follows:

'The Court: The front portion of the plaintiff's car appears to strike the car driven by the defendant, at the right rear wheel, is that right? A. Yes.

'Mr. Campbell: That is correct.

'Q. Is that where you remember striking the other car? A. Approximately there, between the center post and the rear fender there, on the pink car.

'Q. Between the center post and the rear fender of the pink car? A. Yes. That is approximately the way it happended, right here, just about so, and then from the collision our car----

'Q. Never mind that at the moment. I just want you to show us, as best you remember, where the point of impact was, and if you don't remember, tell us. A. That is approximately it.

'Q. Now, just before this collision occurred, I believe you testified that the light was green, and you were about here. Now, between the time that--from here to the point where the two cars collided, did you at any time see the other car, Officer? A. No. All I saw from the other car was a blue flash in front of the scout car.

'Q. You say an instant, is that right? A. Yes, just--just an instant. (Witness snaps fingers.)

'Q. Now, after this accident, did you have any discussion with the man who was driving the other car? A. Yes.

'Q. Is he here in court today? A. Yes, he is.

'Q. Where is he? A. The gentleman in the checkerboard sport jacket.

'Mr. Campbell: Referring to the defendant, Eli Bacila.

'Mr. Garlow: Yes.

'Q. Did you discuss how this accident happened, with Mr. Bacila, or did he discuss it with you? A. I asked him how come he run the red light. He said he thought he had enough time.'

The following testimony on cross-examination further tends to explain the situation at the time of the accident, and the basis for the action of the circuit judge in granting defendant's motion at the conclusion of the proofs:

'Q. Now, Officer Monberg, when you saw the three cars ahead of you on Miller, at the intsersection, I believe you testified at that time you were 150 feet back from the intersection, is that right? A. Approximately 150 feet back from the intersection.

'Q. What was your speed at that time? A. Approximately thirty-five miles an hour.

'Q. What is the speed limit on Miller? A. Thirty-five miles an hour.

'Q. And at about that time the light turned green and the three cars ahead of you proceeded, is that correct? A. Yes, sir.

'Q. Were you in the center of the northbound lanes of travel of Miller at that time? A. Yes, I was in the center lane.

'Q. You didn't change lanes? A. I didn't change lanes.

'Q. What was your speed as you entered the intersection of Miller and Eagle Pass? A. Approximately thirty-five miles an hour.

'Q. Still thirty-five? A. Yes.

'Q. And what was the color of the light for northbound and southbound Miller traffic? A. It was green.

'Q. Now, when was the first time--strike that. You stated that you saw a blue flash, as the other car, is that correct? A. Yes, the flash of the color.

'Q. Was that the first time that you had seen the other car? A. That is the first time I saw the other car.

'Q. And you were already into the intersection at that time? A. I was in the intersection.

'Q. And when you saw the blue flash, what did you do? A. As soon as I saw the flash, there was a collision.

'Q. You didn't put on your brakes? A. I didn't have time.

'Q. You didn't take your foot off the accelerator? A. Oh, I believe I took my foot off the accelerator, but I don't believe there was any braking.

'Q. Did you make any attempt to turn right or left to avoid the collision? A. I don't really remember if I did or not, because as soon as the collision occurred we were turned around, and went backwards into a post on the opposite corner.

'Q. Now, the other car, which you have identified as a blue flash, was it in the position as you have already indicated on the board, at the time that you saw it? A. Just as we--this car came around here. My lights were on, of course, and all I saw was the flash of the car, the blue flash, the color of the car, coming through the intersection. Just at the instant I saw the color of the car, the collision occurred.

'The Court: When you say a blue flash, it wasn't a flash, was it? A. Well, it was the color of the other man's automobile.

'The Court: What you saw, then, was a blue automobile in front of you? A. Yes. The color--the color across the headlights of my car.

* * *

* * *

'Q. And the blue car was moving from west to east, I think you said? A. The car was moving across the intersection, on a left turn.

'Q. I wonder if you could tell us how far in front of your scout car that blue car was when you first it? A. I would say approximately ten to fifteen feet.

'Q. So of your own knowledge and your own observations, you don't know that the...