Davidson v. City of Detroit
| Decision Date | 29 December 1943 |
| Docket Number | No. 32.,32. |
| Citation | 307 Mich. 420,12 N.W.2d 413 |
| Parties | DAVIDSON v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Personal injury action by Jane Davidson against the City of Detroit, Department of Street Railways. Judgment for defendant, and plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Arthur Webster, judge.
Before the Entire Bench.
Clark, Klein, Brucker & Waples, of Detroit, for plaintiff and appellant.
Rodney Baxter and A. Albert Bonczak, both of Detroit, for defendant and appellee.
This is an action for damages sustained by plaintiff when she was struck by defendant's streetcar at the corner of Pingree and Woodward avenue in the city of Detroit. The case was tried before a jury and at the conclusion of plaintiff's proofs the trial court, upon motion by defendant, directed a verdict of no cause for action and entered judgment accordingly. A motion for new trial was denied and plaintiff reviews by general appeal.
Plaintiff, 57 years old, for the past ten years had resided at 55 Hague street in Detroit. Hague street runs east from Woodward avenue and the continuation thereof west of Woodward is called Pingree avenue. At this point Woodward avenue is 72.1 feet from curb to curb, with separate northbound and southbound streetcar tracks. The car tracks occupy 14 1/2 feet of the street. There is a safety zone in the west side of Woodward at this intersection, for southbound traffic, which extends north from the north line of Pingree avenue for a distance of 88 feet. The location is in a business district.
On September 19, 1939, at about 3:00 o'clock in the afternoon, plaintiff left her house east of Woodward, on the north side of Hague, and walked to the northeast corner of Woodward and Hague to take defendant's streetcar downtown. The afternoon was clear, sunshiny and dry. Plaintiff paused at the curb before crossing Woodward to the safety zone and looked in both directions. While standing at the curb plaintiff observed that there was no northbound traffic and that a southbound streetcar was just about opposite a drugstore at an intersection one block north. While still at the curb plaintiff waved her right hand and started to cross the street, walking ‘briskly,’ ‘fairly fast,’ or ‘sharply,’ straight across the street toward the safety zone. As plaintiff was crossing the street to the safety zone after leaving the curb, the streetcar was coming along the southbound rails at a speed of ‘between 30 and 35 miles per hour’ and passed a southbound tractor-trailer vehicle near the north end of the safety zone. The tractortrailer was going 30 miles per hour when the streetcar passed it. Plaintiff continued across the street to the safety zone and did not pause anywhere along the way, ‘not one second.’ She went ‘right along fast’ and did not change her pace from the time she left the curb until she was struck by the streetcar. When plaintiff was in the center of the street and before entering the west or southbound rails on which the streetcar was coming, she again waved her hand, kept it ‘half-way up’ as she crossed the street, and then raised it again when she was in the center of the street.
There were some differences of opinion among the witnesses testifying for plaintiff as to the exact point where the streetcar passed the tractor-trailer unit, and as to how close the streetcar was to the plaintiff when she started to cross the southbound track in front of the streetcar. On direct examination, the driver of the tractortrailer testified that the streetcar passed him before he got to the safety zone, and that until plaintiff got to the center of the street he was ahead of the streetcar. According to the testimony of this witness on cross-examination, the streetcar was less than 88 feet from plaintiff when she started to walk in front of it. He testified:
According to another witness, when plaintiff ‘got to the tracks' the streetcar was north of the 88-foot safety zone. The plaintiff herself was not clear as to how far distant the approaching car was when she entered the southbound track. On direct examination, she testified that when she got to the center of the street and raised her hand the second time the streetcar ‘would be in front of the drugstore and a little past.’ On cross-examination, she testified:
‘The Court: Well, if you stopped when you held up your hand, stopped right there, where would you be?
‘The Witness: I would have been there--
‘The Court: Well, just imagine that you stayed right there, never moved from that spot, would the streetcar have hit you or not?
‘The Witness: Yes, if I stayed there, yes.’
The importance of this testimony becomes apparent when we consider plaintiff's claim that the motorman had sufficient time to avoid an accident when he should have observed that plaintiff had placed herself in a position of peril. It is uncontroverted that the motorman did not see plaintiff until after she was struck.
Before entering upon the southbound track, plaintiff either saw, or would have seen had she looked, that the streetcar was approaching the place where she was about to cross in front of it, at 30 to 35 miles per hour, an undiminished rate of speed. Plaintiff was struck by the streetcar as she was about to step clear of the danger point. The extreme right front corner of the streetcar struck her on the hip and she was thrown violently to the pavement.
It was admitted by defendant's employee immediately after the accident that he did not see the plaintiff as all before she was struck. If he did not see her at all, obviously he did not see her attempt to signal for a stop as she stepped from the curb, nor as she was about to cross the southbound track. It is a fair inference that the motorman's attention was directed to his right, and away from plaintiff, at the tractor-trailer that he was passing. The streetcar was traveling at a high rate of speed and the motorman was not observing conditions ahead. The motorman should have seen plaintiff and should have slowed down. He continued to move forward at 30 to 35 miles per hour, at undiminished speed, without maintaining a proper lookout ahead, when into the street intersection without seeing plaintiff at all although she signaled at the curb and as she crossed the street. For the purposes of this case, viewing the testimony and all reasonable inferences therefrom in the light most favorable to plaintiff, the negligence of the defendant was established by the proofs.
We find it necessary to agree with the conclusion of the trial court that plaintiff was guilty of contributory negligence as a matter of law. While still at the curb she saw the rapidly approaching streetcar and hurried to cross the track in front of it and to the opposite safety zone in order to board the car. At 30 miles per hour, the streetcar was traveling at the rate of 44 feet per second. When plaintiff started to enter the track to cross in front of it, 10 feet from safety, the car would hit plaintiff in approximately 2 1/2 seconds if it continued at the same rate of speed. Assuming that plaintiff walked rapidly and did not hesitate, at the rate of 2 1/2 miles per hour she would travel approximately 4 feet per second. From all the testimony, it is apparent that the accident occurred in less than 2 1/2 seconds from the time she started to cross the track, the time it took for the streetcar to travel about 100 feet. Plaintiff apparently relied entirely on the belief that the motorman had seen her and would slow down. She testified:
‘* * * From the time I left the curb I did not pause anywhere along the way-‘not one second.’
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Plaintiff took the chance of going into a place of obvious danger without taking the precaution of observing whether she could cross in safety.
‘A reasonably prudent man will not take a chance of streetcars slowing up to let him cross a street.’ Public Administrator v. City of Detroit, 234 Mich. 314, 207 N.W. 882.
When plaintiff approached the car track and gave the usual signal of her desire to become a passenger, she had the right...
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