Day v. Troyer, 83

• Decision Date: 29 November 1954
• Docket Number: O,No. 83,83
• Citation: 67 N.W.2d 74,341 Mich. 189
• Parties: Bertha DAY, Plaintiff and Appellee, v. Elroy TROYER, d/b/a Troyer Poultry Farms, Defendant and Appellant. ct. Term.
• Court: Michigan Supreme Court

Page 74

67 N.W.2d 74

341 Mich. 189

Bertha DAY, Plaintiff and Appellee, v. Elroy TROYER, d/b/a Troyer Poultry Farms, Defendant and Appellant.

No. 83, Oct. Term.

Supreme Court of Michigan.

Nov. 29, 1954.

Seymour, Seymour & Hughes, Benton Harbor, for defendant and appellant.

J. D. Hartwig and John L. Crow, Benton Harbor, for plaintiff and appellee.

Before the Entire Bench.

SHARPE, Justice.

Defendant, Elroy Troyer, seeks review of a judgment of $6,000 growing out of a collision between his truck and plaintiff, a pedestrian. The accident occurred between 2 and 3 p.m., on November 23, 1951, at the intersection of Main street and Fourth street in the city of Benton Harbor, Michigan. Main street runs east and west, and is approximately 60 feet in width from curb to curb. Fourth street runs north and south, and is approximately 48 feet in width from curb to curb. Plaintiff, a woman 71 years of age at the time of the accident, was walking in a northerly direction on the east side of Fourth street, intending to cross the intersection of the intersecting streets. As she approached the southeast intersection the light was against her and she waited until it changed. When the light changed, plaintiff looked to her left and saw no cars, she then looked across the street to the north and saw no cars. She then proceeded across the street in a northerly direction. Just prior to plaintiff's entry into the street defendant was double parked on Fourth street, about 40 feet north of Main street. After making a delivery of poultry he turned his truck around and headed south on Fourth street. When he arrived at the intersection the signal light was red and he stopped his truck. When the light turned green he entered the intersection and proceeded to make a left hand turn onto Main street. Defendant observed plaintiff when he was about 15 feet from her. He put on his brakes, but collided with her. At the time of his entry into the intersection he was travelling at a speed of 8 to 12 miles an hour. At the time of the accident the sky was clear, the pavement dry and visibility good. As a result of the accident plaintiff suffered contusions on her left side, her shoulder and left hip and down her left leg. The cause came on for trial before a jury and resulted in a verdict in favor of plaintiff.

The record shows that at the close of plaintiff's case defendant moved for a directed verdict, based upon the theory that plaintiff was guilty of contributory negligence as a matter of law. The trial court took the motion under advisement by virtue of the authority contained in the Empson Act. At the close of all evidence defendant again moved his previous motion, and the court again took it under advisement. Following the conclusion of the trial and verdict, and before judgment was entered thereon, after due notice to counsel for plaintiff, a motion for judgment notwithstanding the verdict, was filed in said court on March 12, 1953, and regularly brought on for a hearing, which said motion was as follows:

'Now comes the above named defendant, by his attorneys, Seymour, Seymour & Hughes, and moves the court to enter a judgment for the defendant notwithstanding the verdict for plaintiff heretofore entered by the jury in this cause, for the following reasons:

'1. That the facts presented by plaintiff wholly fail to make out a prima facie case entitling plaintiff to a verdict.

'2. That evidence presented by plaintiff fails to show any actionable negligence whatever on the part of defendant.

'3. The evidence presented by plaintiff shows that plaintiff was guilty of contributory negligence as a matter of law in that she (1) failed to make proper observation as to approaching traffic, (2) failed to observe approaching traffic and form a judgment as to its distance away and its speed, (3) failed to continue her observations while crossing the street, and (4) failed to exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances.

'4. The verdict of the jury rests only upon guess or conjecture and is not supported by any evidence presented on plaintiff's case.'

The court denied the above motion.

Thereafter defendant filed a motion for a new trial for the following reasons:

* * *

* * *

'Because the court erred in refusing the request to charge on the part of defendant as follows:

"I charge you that if you find it to be a fact that at the time of the accident plaintiff was between the centerline of East Main Street and the southerly curb of East Main Street, then you must find that she was guilty of contributory negligence and your verdict must be for the defendant, no cause for action.'

'Because the verdict of the jury is grossly excessive.

'Because the court erred in putting the question of insurance to the jury, plaintiff's attorney having failed to show a good faith record why such question should be submitted to the jury, and the obvious purpose of such question was to prejudice the jury in favor of plaintiff.'

The trial court denied defendant's motion for a new trial, whereupon defendant appeals. The principal issue of fact in this case is the point of impact. It is the claim of defendant that plaintiff had not reached the center of Main street at the instant of collision. In view of the fact that plaintiff testified that she was half way across the street or a little over, we think a question of fact was presented to the jury on this issue. On this issue the trial court instructed the jury as follows:

'* * * But if a person walks out into a street and passes the center of the street there is no duty at law imposed upon him or her to look in the direction to his left where vehicles might be approaching on the wrong side of the street; he has a right to assume under those circumstances that the vehicles will obey the law and be on the proper side of the street. That request for instruction is requested by the plaintiff in view of the plaintiff's claim that she had crossed the center line of East Main Street and that the defendant was, shall we say cutting the corner too close so he was on his left side of Main Street where he should not have been. That is a question of fact for your determination.'

We find no fault with this instruction.

Defendant urges that plaintiff was guilty of negligence as a matter of law and relies upon Huber v. Paquette, 293 Mich. 370, 292 N.W. 334; Long v. Garneau, 319 Mich. 291, 29 N.W.2d 696; Malone v. Vining, 313 Mich. 315, 21 N.W.2d 144; and Levine v. Schonborn, 336 Mich. 312, 57 N.W.2d 889. The facts in the instant case show that when plaintiff reached the intersection of Main and Fourth streets she paused and waited until the traffic light turned green in her favor, but before stepping into the street she looked to her left and to the north and saw no cars entering the intersection. She stated, 'I was watching the traffic light and my surroundings going across.' It should be noted that just prior to the collision defendant's truck was not coming from the west on Main street, nor from her right on east Main street, but was in the process of executing a partial 'U' turn on Fourth street and a left turn on east Main street. Plaintiff had a right ot assume that any car travelling east on Main street would travel on the south half of Main street. In Huber v. Paquette, supra, the issue arose out of a collision between 2 automobiles at a street intersection. When plaintiff entered the intersection she saw defendant approaching the intersection at a high rate of speed and about 300 feet away. She could have stopped and avoided the accident, but relying on her right to the right of way she proceeded into the intersection. We there held that plaintiff was guilty of contributory negligence as a matter of law when she relied on the right of way principle in the face of a known danger, she having the ability to prevent the collision. In the case at bar plaintiff did not know of or have reason to believe that defendant would use the wrong side of the highway in travelling east on Main street.

In Malone v. Vining, supra [313 Mich. 315, 21 N.W.2d 146], we said:

'Under present-day traffic conditions a pedestrian, before crossing a street or highway, must (1) make proper observation as to approaching traffic, (2) observe approaching traffic and form a judgment as to its distance away and its speed, (3) continue his observations while crossing the street or highway, and (4) exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances. In Pearce v. Rodell, 283 Mich. 19, 37, 276 N.W. 883, 890, we approved the following charge by the trial court:

'Pedestrians upon the public highway have a right to assume in the first instance the driver of an automobile will use ordinary care and caution for the protection of pedestrians, nevertheless the pedestrian must not rest content on such assumption, if there comes a time where he knows, or ought to know by the exercise of reasonable care, he is being placed in danger. He must take such care for his own safety as a reasonable, careful, prudent person would do under similar circumstances."

In the above case we held plaintiff guilty of contributory negligence in crossing the pavement in the face of impending danger and without continuing his observation. In the case at bar plaintiff continued her observation while attempting to cross the intersection; moreover, she had no reason to believe there was impending danger. In Long v. Garneau, supra, plaintiff, a pedestrian, was walking south on the east side of Washington avenue in the city of Lansing. As she approached Kalamazoo street she stopped and waited for the green light and then proceeded to cross Kalamazoo street. At the same time defendant in an automobile was travelling south on Washington avenue, and at the intersection turned left on Kalamazoo street and collided with plain...