Holser v. City of Midland

• Decision Date: 04 June 1951
• Docket Number: No. 8,8
• Citation: 48 N.W.2d 208,330 Mich. 581
• Parties: HOLSER v. CITY OF MIDLAND et al.
• Court: Michigan Supreme Court

Page 208

48 N.W.2d 208

330 Mich. 581

HOLSER v. CITY OF MIDLAND et al.

No. 8.

Supreme Court of Michigan.

June 4, 1951.

Heilman & Purcell, Saginaw, Gilbert A. Currie, and Gilbert A. Currie, Jr., Midland,

John D. Currie, Saginaw, for plaintiff and appellee.

Smith & Brooker, Bay City (George J. Cooper, Detroit, of counsel), for defendant City of Midland.

Stanton, Montgomery, MacKenzie & Cartwright, Saginaw, for defendant Dow Corning Corp.

Before the Entire Bench.

REID, Chief Justice.

Plaintiff as administratrix of her deceased husband's estate filed her declaration, July 27, 1949, to recover damages for injuries received by her husband on October 8, 1948, in a collision between his automobile and a fire truck, at a stoplight intersection of streets, which injuries rendered him unconscious and caused his death, which took place on March 23, 1949. Plaintiff claims the accident was occasioned by the negligent conduct of servants and agents of defendants. From a judgment on verdict for $46,000, defendants appeal.

Among other things defendants claim plaintiff's decedent was guilty of contributory negligence as a matter of law. In reviewing that question we must in view of the verdict and the nature of the motion, assume as true the testimony if any fairly supporting plaintiff's claim that her decedent was free from contributory negligence.

On October 8, 1948, about 7:45 a. m., plaintiff's decedent, hereinafter referred to as Mr. Holser, was driving southerly on State street in the city of Midland, Michigan, approaching the intersection of Ellsworth street, at which intersection traffic was controlled by a red, amber and green signal light. State street crossed Ellsworth street at right angles and was of the width of 36 feet from curb to curb. The fire truck of defendant city of Midland was traveling east on Ellsworth street for several blocks before arriving at the intersection in question, at which the collision occurred. Ellsworth street was 29.4 feet from curb to curb west of the intersection and 24 feet from curb to curb, east of the intersection.

A fire alarm had been received by the Midland city fire department from the plant of the Dow Corning Corporation, which plant was located just outside of the limits of the city of Midland and near the plant of the Dow Chemical Company.

The Dow Corning Corporation had a contract (received in evidence) with the city of Midland for fire protection in addition to the fire protection maintained by Dow Corning Corporation in its own plant. Ellsworth street was the principal avenue of approach to the Dow Corning plant. A shift of employees occurred about the time of the accident in question and there were in consequence cars and pedestrians near the intersection.

Plaintiff claims that her decedent neither saw nor heard the fire truck before entering the intersection and entered the intersection on a green light.

There were witnesses to the collision.

There is no presumption of decedent's freedom from contributory negligence.

It was incumbent on plaintiff to prove by a preponderance of evidence that Holser was free from contributory negligence.

It is the duty of the driver of an automobile to be fairly alert as to potential dangers that may be readily seen or heard, especially when approaching a busy intersection of comparatively narrow streets. It is not enough that he be alert for things to be seen. He must also listen for it is a matter of common knowledge that there are at busy intersections very often sounds of auto horns and the rumbling of wheels as well as screeching of tires caused by applied brakes and other sounds all indicative more or less of imminent danger. See City of Lansing v. Hathaway, 280 Mich. 87, 89, 273 N.W. 403, in which we recite the duty of the driver to hear as well as to look: 'Defendant had a right, under permission of the green light, to cross the intersection unless, by the reasonable exercise of the senses of sight and hearing, he should have noticed or heard warning to the contrary.'

See also, Bryan v. City of Chicago, 371 Ill. 64, 20 N.E.2d 37.

Plaintiff relies on the City of Lansing Case, supra.

In the City of Lansing Case:

(a) It was raining.

(b) Standing cars and rain on the car side window obstructed Hathaway's view.

(c) Hathaway received no warning of the approach of the fire truck.

(d) No radio was on.

In the instant (Holser) Case:

(a) It was clear.

(b) Holser had an unrestricted and unlimited view of Ellsworth street after he was within 30 feet of the northerly curb line of Ellsworth.

(c) There was clear proof that the siren on the fire truck was audible.

(b) Holser's radio was on without any necessity therefor being shown.

In the instant case, all the windows of the Holser car were closed except the right hand vent, which was open approximately one-half inch, that being the window nearest the approaching fire truck.

The duty to attentively listen is not decreased but rather increased by the fact that Holser had his radio on, as there is not shown any necessity for his listening to the radio or for the radio to be on and thus counteracting to some extent the noises indicative of danger.

The fire truck weighed 10,500 pounds, plus the weight of the six firemen who were upon it. Before the accident the siren on the truck was raised on a bracket to a height of 31 inches above the running board. Plaintiff did not plead nor claim that the siren was defective.

The truck driver on receiving the alarm on the day in question, left the fire hall on Ashman, turned in on Ellsworth and came easterly seven blocks on Ellsworth to the intersection of State; the blocks are 306 feet long except that between State and George (apparently the first cross street west of State) the distance is 546 1/2 feet.

The driver of the truck, Garno, and firemen Brown, Dull, Moore, Palmer and Carl Engwis, all testified the siren was sounded during all the truck's progress on Ellsworth until after the accident.

Witnesses, stationed at various points and distances from the intersection of State and Ellsworth streets, heard the siren: Dwight Olsen (plaintiff's witness), sitting in his standing car south of the intersection, heard the siren although he had his windows closed except for one vent, and radio on. Robert Harcourt heard the siren blowing when he was two blocks south of Ellsworth on State street; he heard it continue to blow until the collision. Donald Beckwith, a pedestrian at the intersection, heard the fire siren blow a minute or two before the truck was in sight; he testified he saw it first when it was in the middle of the block west of State street going 40 to 50 miles per hours; he also testified that he saw the Holser car when it was 75 feet from the intersection, at which time the fire truck was 200 feet from the intersection, and he heard the siren blow continuously as the truck came down Ellsworth street. Colter Landis, traveling on Larkin street a block south of Ellsworth, heard the siren continuously blowing as he traveled a block and a half on that street to reach a parking lot one block from the intersection of Ellsworth and State streets. John R. Ladd heard the siren as he was at the corner of State and Larkin streets, which is one block south of State and Ellsworth streets. John Geary was standing on the south side of Ellsworth street 75 feet east of the intersection of State and Ellsworth streets and testified he heard the fire siren blow before he saw the fire engine; that when he first saw the fire truck it was about half way between State and George streets; the siren blew continuously, it was a varying sound and he continued to hear it; first it would be high and then it would be low. Geary first saw the Holser car a second or two before the actual impact. Madeline Ritenour and her husband both heard the siren, she when their vehicle was one block north of the intersection, and he when it was two blocks north of the intersection; she and her husband were traveling behind the Holser car and they both saw the fire truck, she when they were not quite to the driveway of the Buick garage and the fire truck was in front of the pumps, he when they were 90 feet from the intersection and the fire truck was about 95 feet from the intersection. (The southerly line of the Buick garage was 40.2 feet north of the north curb line of Ellsworth and 85.4 feet west of the west curb line of State street.)

Plaintiff to establish the inaudibility to Holser of the siren relies on one witness' opinion and upon two witnesses to the accident, Miss Lynch and the passenger in her car, Mrs. Bleicher.

Miss Lynch testified she was driving on the southerly side of Ellsworth street toward the intersection in question. She testified, 'When I heard the fire siren I did not know the location of the fire truck, except that it was some place behind me.' She testified she first heard the fire truck when she was 15 or 20 feet west (back) from the intersection and that she pulled toward the southerly curb of Ellsworth on hearing the siren and, 'I had made a complete stop at the intersection and the truck went along.'

The testimony of witness Lynch does not fairly support the plaintiff's claim that the siren could not have been heard seasonably by Holser.

Mrs. Bleicher, plaintiff's witness, a passenger in the car driven by Miss Lynch, testified that she heard the siren for the first time when the truck passed the car in which she was riding, after said car had come to a stop. Mrs. Bleicher did not testify she was listening for the siren.

Dr. Barstow, a witness for the plaintiff, gave an opinion as to the inaudibility to Holser of the siren. He had no knowledge from experimentation of the distance the siren in question would carry, and his opinion when all is considered is not sufficient as a contradiction of the several witnesses who testified they actually heard the siren.

The jury would be in error in accepting the negative...