Hicks v. Gillespie, 18
| Decision Date | 04 September 1956 |
| Docket Number | No. 18,18 |
| Citation | 346 Mich. 593,78 N.W.2d 145 |
| Parties | George A. HICKS, Plaintiff-Appellee, v. Robert A. GILLESPIE, Administrator of the Estate of Richard Gillespie, and Robert A. Gillespie, Defendants-Appellants. |
| Court | Michigan Supreme Court |
Gault, Davision & Bowers, Flint, for defendants-appellants.
Clifford B. Dye, Fenton, for plaintiff-appellee.
Before the Entire Bench.
We have here a negligence case. It arises out of a collision at the intersection of two rural roads. The defendant appeals a jury verdict. Defendant asserts primarily that plaintiff was guilty of contributory negligence as a matter of law.
On August 19, 1951, plaintiff was driving eastward on Calkins road in Genesee county, Michigan. It was about six o'clock in the evening on a sunshiny, clear Sunday. Plaintiff was driving new (3 weeks and 2 days old) car. His wife and 14 year old daughter were beside him in the front seat. The 5 year old was on the back seat, asleep. The road was gravel, it was rough, and he drove slowly, 'didn't stir up any dust.' (We will state the facts as they must be viewed in the light most favorable to the plaintiff.)
They approached Linden road, a northsough highway, also gravelled, also rough, a road of equal importance, equal rank. The intersection of the two roads was hazardous in the extreme. To plaintiff's left, north of the intersection, on the west side of Linden, were fence rows, brush, vines, several large trees and, about 250 feet north of the intersection, a large bush which hung over a part of the westerly half of the road. This bush figures prominently in the testimony. To the south the situation was even worse. The fence row 'sticks out seven feet further on the right side of the road then it does on the left' and there were 'bushes, briars, vines and old fence posts leaning over.' In addition, there was a 'jog' in Linden to the plaintiff's right, south of the intersection.
As plaintiff approached the intersection he slowed down 'to just about a stop.' At this point he could see north about 45 feet. The road was clear. Cautiously he moved into the intersection ('crawled' is the word his wife uses, 'we crawled out, crawled up around, but you couldn't see anything that way until you got your car out'). By the time his car was 'sticking out about seven-eight feet into Linden road,' he could see to the north all the way up to the big bush, about 250 feet away. No car, he says, was visible. Still proceeding at a slow speed ('between three and four miles an hour') he continued on his course across the intersection, now looking to his right. The bushes, vines, and old fence posts blocked his vision south, 'so I pulled on out more so I could see down there because as I approached I saw a lot of dust.' 'Is that a car coming down there?' he asked his wife, 'No,' she answered, 'it is just a whirlwind.' By the time he could see to the right all the way down Linden road, the front of his car was past the center line of the intersection. These are the main outlines. Additional facts will be referred to as required by our discussion of the law.
The defendant takes a broad position. This Court has 'consistently held for many years,' he asserts, 'that when an accident occurs at an intersection of two rural roads of equal importance that both drivers are guilty of negligence and neither can recover as a matter of law.' One exception, only one, is conceded: where the collision is caused by defendant's change of speed or course after plaintiff, who having seen the oncoming car, has formed his reasonable judgment as to defendant's speed and distance. Applying to the case before us this asserted 'consistent holding,' defendant's position is clear: Plaintiff here did not see the defendant until the instant before the crash, obviously he could not have formed a reasonable judgment as to defendant's course and speed, therefore he cannot recover.
Unfortunately for the process of decision, the law is not so simple. The matter of negligence involves a determination of reasonable care under the 'same or similar circumstances' and in the consideration of circumstances we go beyond the mere fact that we have an intersection, and beyond a consideration of defendant's original course and speed. We consider all of the relevant circumstances, which include, among others, the condition of the intersection itself, the nature and the condition of the intersecting roads, and the conduct of the motorists with respect thereto.
Defendant's most serious contention is that 'the plaintiff made no effort to maintain an observation for traffic approaching from his left or from the north during the time that he was crossing the west portion of Linden road.' It will be recalled that plaintiff looked to his left as he approached the intersection, again at the edge of the intersection (at which time he could see only 45 feet to his left, and again when his eye reached the point where he could see north, about 250 feet, to the overhanging bush). At this point the front of his car was well (by 7 or 8 feet) into the 24-foot width of the gravelled portion of Linden road. From this point, however he did not have a clear vision south on Linden, although he could see, in that direction, a 'lot of dust.' The front of his car was 'past the center line' before he had clear vision south on Linden road and could perceive that the dust was not due to automobile traffic. When he was struck the driver's seat of plaintiff's car was past the center of the intersection and was past fendant's car was on the east side (his wrong side) of the road.
Should the plaintiff, as a reasonably prudent driver, have disregarded the dust cloud to his right...
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