Francis v. Rumsey

• Decision Date: 25 November 1942
• Docket Number: No. 17.,17.
• Citation: 303 Mich. 526,6 N.W.2d 766
• Parties: FRANCIS v. RUMSEY.
• Court: Michigan Supreme Court

303 Mich. 526

6 N.W.2d 766

FRANCIS

v.RUMSEY.

No. 17.

Supreme Court of Michigan.

Nov. 25, 1942.

Action by Ray C. Francis against Peter Rumsey for injuries sustained in an automobile-truck collision. From the judgment plaintiff appeals and defendant cross-appeals.

Affirmed. Appeal from Circuit Court, Ottawa County; Fred T. Miles, Judge.

Before the Entire Bench.

Knappen, Uhl, Bryant & Snow, of Grand Rapids (Donald G. Slawson, of Grand Rapids, of counsel), for defendant-appellee and cross-appellant.

Clifford A. Mitts, Jr., of Grand Rapids, for plaintiff-appellant.

Mitts & Smith, of Grand Rapids, for plaintiff-appellant and cross-appellee.

STARR, Justice.

Plaintiff appeals from a judgment of no cause of action for defendant, entered by the trial court notwithstanding a jury verdict for plaintiff. Defendant cross-appeals.

This case involves plaintiff's claim for damages resulting from an automobile accident occurring about 10:45 on the evening of June 5, 1940, at the intersection of Sixteenth street and Van Raalte street in the city of Holland. Plaintiff, about 48 years old, accompanied by his stepson, was driving his 1930 Ford car west on Sixteenth street. Defendant was driving his Ford pick-up truck south on Van Raalte street. Both streets were paved, and neither was a through, or preferred, street. Sixteenth street was about 30 feet and Van Raalte about 42 feet wide. There was a parkway 12 feet and a sidewalk 6 feet wide on the east side of Van Raalte. The night was ‘ordinarily dark.’ Both cars had their lights on and, according to the testimony, were in good mechanical condition.

There was a house facing Sixteenth street located at the northeast corner of the intersection, the west side of the house being about 15 feet east of the sidewalk, and about 54 feet east of the center line of Van Raalte. As plaintiff was passing the house, he looked to his right (north) and saw defendant's truck about 150 feet north on Van Raalte approaching the intersection. Plaintiff testified, in part:

‘Q. What did you see of that vehicle (defendant's truck) as it was coming toward you? A. I watched it about a second to see how it was coming there and I figured I had plenty of time to go across and I just started across and looked to my left and about that time the boy (stepson) hollered ‘look out.'

‘Q. Where were you when the boy hollered ‘look out?’ A. About two-thirds across the intersection.

‘Q. Did you look to your right at that time? A. Yes.

‘Q. Did you see this other car? A. I saw the other car, it was right at the cross-walk there. * * * ‘Q. What happened next? A. Why, I just turned-pulled my car to the left and stepped on the gas and tried to get away from him. * * * He struck the right rear of my car with the front of his. * * *

‘Q. And approximately how far did the Rumsey car travel while you watched there for that second? A. About 40 feet. * * *

‘Q. You never applied your brakes? A. Not after I was in the intersection. * * * He was about 150 feet north when I was 53 feet or a little better east of the center line of the intersection. * * *

‘Q. Did you form any judgment of the speed of the Rumsey car? A. No, sir.

‘Q. Do you have any idea what speed it was going at? A. No, sir.

‘Q. When you saw the Rumsey car did it seem to you to be slowing up any? A. I don't know. * * *

‘Q. You didn't notice whether his car was slowing up or speeding up, or anything about the speed, is that correct? A. No. * * *

‘Q. How fast would you say you were going as you entered the intersection? A. Why, it was about 20 or a little less, because I had took my foot off and was allowing her to drag along; I expect I did put my foot on the accelerator a little bit to continue on through the intersection.'

Plaintiff's testimony was substantiated, at least in part, by the testimony of his stepson who was riding with him. Plaintiff sustained severe personal injuries, and his car was badly damaged. Much of the record is devoted to conflicting testimony regarding the injuries sustained by plaintiff and concerning the condition of his health prior to the accident.

At the conclusion of plaintiff's proofs defendant moved for a directed verdict on the ground ‘that plaintiff's undisputed testimony shows contributory negligence as a matter of law.’ The trial court reserved decision on such motion.

Defendant testified that he was driving his Ford pick-up truck south on Van Raalte street at a speed of about 25 miles an hour and that as he approached the intersection, he slowed down and looked to the left (east). He further testified, in part: ‘When I first looked to the left I was approximately 60 feet back. * * * I did not see anything coming to my left on 16th the first time I looked. I looked to the left again when I was about 8 to 10 feet from the north crosswalk of 17th (16th). I saw headlights about 20 feet from the crosswalk of Van Raalte-it was out in the middle of the street-and estimated the speed of the car as 40 miles an hour. I slammed on the brakes and stopped just about the center line of 16th. The car hit the front end of my truck.'

At the conclusion of defendant's proofs he renewed his motion for directed verdict. The court reserved decision, and the case was submitted to the jury which returned a verdict for plaintiff of $3,700.

Defendant then filed motion for judgment notwithstanding the verdict, on the ground that the testimony shows plaintiff was guilty of contributory negligence as a matter of law. The trial court granted such motion, and judgment notwithstanding the verdict was entered for defendant. The trial court's opinion stated, in part:

The collision occurred at an intersection in the night time; plaintiff's observations prior to the collision were very limited; defendant was on his right and approaching at a speed unknown and not estimated by the plaintiff.

‘It is hard to account for the verdict of the jury under the circumstances; however, a review of the cases and of the facts is convincing that when we view the testimony on behalf of plaintiff and give it a construction most favorable to him, the conclusion is inevitable that he did not use ordinary care under the circumstances.'

Plaintiff appeals, contending that the trial court erred in refusing to enter judgment in accordance with the jury's verdict, and in granting defendant's motion for judgment notwithstanding the verdict. In view of our decision we need not discuss defendant's contentions on cross-appeal.

The principal question requiring consideration and determination is: Was plaintiff guilty of contributory negligence as a matter of law?

In reviewing a judgment for defendant non obstante veredicto we view the facts in the light most favorable to plaintiff. Saunders v. Joseph, 300 Mich. 479, 2 N.W.2d 471;Shank v. Lucker, 296 Mich. 705, 296 N.W. 852;Stephens v. Koprowski, 295 Mich. 213, 294 N.W. 158.

In summary, the testimony shows that plaintiff, when about 54 feet east of the center of the street intersection, observed defendant's truck approaching on Van Raalte street from a point about 150 feet north of the north lime of the intersection; that plaintiff made no observation as to the speed of defendant's truck and formed no opinion or judgment as to its speed; that plaintiff looked for ‘about a second’ and ‘figured’ that he had plenty of time to cross; that he then drove into the intersection, making no further observation of defendant's truck until about 2/3 of the way across, and that it was then too late to avoid a collision.

The testimony and the physical facts clearly establish that plaintiff was guilty of contributory negligence, because (1) he failed to make observation as to the speed of defendant's approaching truck and formed no opinion or judgment as to its speed; (2) he failed to keep a lookout and to make further observation to ascertain if he could safely proceed; and (3) he failed to exercise that degree of care and caution which an ordinarily careful and prudent person would have exercised under the same or similar circumstances.

It is apparent that plaintiff could form no rational judgment that it was safe to proceed into the intersection without first forming some opinion or judgment as to the speed of defendant's approaching truck. Plaintiff testified that he did not ‘form any judgment of the speed’ of defendant's truck and that he ‘didn't notice whether his (defendant's) car was slowing up or speeding up or anything about the speed.’ A somewhat similar factual situation was presented in Ayers v. Andary, 301 Mich. 418, page 425,3 N.W.2d 328, at page 329, in which Mr. Justice North, writing the majority opinion, stated: ‘Obviously the first observation made by plaintiff's driver of defendant's car amounted to no more than a fleeting glance of the oncoming car without forming any judgment whatever as to the rate of speed at which it was approaching. Under the circumstances of this case an observation of an approaching car in close proximity without giving any consideration to the rate of speed at which it is approaching was quite futile. If one is to make a proper observation of an oncoming car under the circumstances of the instant case, the observation must include not only the distance the approaching car is from the point of possible collision but also some observation and judgment of its approximate speed. This plaintiff's driver failed to do.'

In Nelson v. Linderman, 288 Mich. 186, 284 N.W. 693, 694, we said: ‘Something more than a fleeting glance at an approaching car is necessary if plaintiff seeks to avoid the burden of contributory negligence.'

In Sonfilian v. Wiedman, 291 Mich. 697, 289 N.W. 300, 301, Mr. Justice Sharpe ...