Koehler v. Thom, 98.

• Citation: 285 Mich. 593,281 N.W. 336
• Decision Date: 03 October 1938
• Docket Number: No. 98.,98.
• Parties: KOEHLER v. THOM (four cases).
• Court: Supreme Court of Michigan

285 Mich. 593

281 N.W. 336

KOEHLER

v.THOM (four cases).

No. 98.

Supreme Court of Michigan.

Oct. 3, 1938.

Actions by Anna Koehler, Max Koehler, William Koehler, and Wanda Klatt against Howard Thom, arising out of an automobile collision. Judgments for plaintiffs, and defendant appeals.

Reversed.

Appeal from Circuit Court, Lapeer County; Louis C. Cramton, judge.

Argued before the Entire Bench, except BUTZEL, J.

William J. Eggenberger, of Detroit, for appellant.

Geo. W. DesJardins, of Lapeer, for appellees.

SHARPE, Justice.

This case arises out of a collision between two automobiles at the intersection of the Lapeer-Columbiaville road, known as county road No. 490, which runs north and south, and county road No. 403, which runs east and west, in Lapeer county, Michigan. Both roads are of gravel construction, about twenty feet wide, and at the time of the collision were in good condition. Neither road is superior to the other, there being no stop signs at this intersection.

On Sunday, June 21, 1936, at about the hour of 12:30 p. m., plaintiff William Koehler together with Max and Anna Koehler, his father and mother, and Wanda Klatt, a passenger, were traveling in a northerly direction on county road No. 490 at a speed of about 35 miles per hour and as William Koehler, the driver of plaintiffs' car, approached the intersection, he looked to the right and left for possible traffic on the east and west road. When he was 40 feet from the south edge of the intersection, he saw defendant's car approaching from the west at a point 80 feet west of the intersection traveling at a speed of 55 miles per hour. At a point 40 feet south of the intersection the view to the west is limited to 80 or 90 feet. Plaintiffs' car entered the intersection first; Koehler blew his horn when he sighted defendant's car; and when he saw that the cars were about to collide, stepped on the gas, but was not successful in avoiding a collision.

Plaintiffs brought separate suits. When the cause came on for trial the cases were consolidated. At the close of plaintiffs' proofs and at the close of all proofs, defendant made a motion for a directed verdict upon the ground that the driver of plaintiffs' car was guilty of contributory negligence. Both motions were denied and the cause was submitted to the jury which returned verdicts for all of the four plaintiffs. Defendant appeals.

It is the claim of plaintiffs that the driver of plaintiffs' car had the right of way (1 Comp.Laws 1929, § 4712) and had a right to assume that defendant would accord him the right of way. It is elementary that if plaintiffs are to recover they must show that the driver of their car was free from contributory negligence, none of plaintiffs being minors.

[4] William Koehler testified as follows:

‘Q. As you approached the intersection you say you looked to the left? A. That is right.

‘Q. Was there any car approaching the intersection? A. There was a car approaching the intersection.

‘Q. When did you first see that car? A. It was approximately eighty feet from the intersection. * * *

‘Q. And at the time it was eighty feet from the intersection, where were you? A. Approximately forty feet from the intersection.

‘Q. What did you do as you saw the car approaching the intersection which you were also approaching, what did you do? A. Continued on.

‘Q. You continued on. Will you describe what the approaching car did? A. It continued on its course.

‘Q. How fast was that approaching towards your car? A. Approximately fifty-five miles an hour. * * *

‘Q. Did you deviate from that direction as you went through the intersection, intentionally I mean? A. No, sir. * * *

‘Q. After you had traversed that forty feet and entered the intersection you say you continued to observe it, now tell us where it was with reference to the intersection? A. He was entering the intersection also. * * *

‘Q. Well, where was your car when it was struck? A. Slightly beyond the center of the intersection. * * *

‘Q. Now as you approached that intersection you say you were approximately forty feet from the intersection when you first observed him coming towards you; could you have stopped at that time had you known its was necessary? A. Yes, sir.

‘Q. And why did you not believe it to be necessary? A. Because I was at the intersection first. * * *

‘Q. Now did Howard Thom's car slacken its speed at any time from the time you first saw it eighty feet back until the time of the impact? A. Not to my knowledge.

‘Q. And your best judgment is that the Thom car was traveling about fifty-five miles per hour when you first saw it? A. Yes.

‘Q. Did you have, or notice anything about the Thom car that would indicate that he was going to stop? * * * A. No. * * *

‘Q. In other words, seeing that car approach as you did, you took no steps to slacken the speed of your car or stop your car and let the car go through, did you? A. No. * * *

‘Q. When you were say thirty feet back from the intersection, south of it, the south line of east and west road, could you have stopped your car before entering the intersection? A. Yes, sir.

‘Q. Could you have stopped your car before entering the intersection when you were forty feet away from the south line of the east and west road? A. Yes, sir.

‘Q. Could you have stopped your car when you were twenty feet away from the south line of the east and west road? A. Yes, sir.’

The testimony shows that both drivers continued on into the intersection without any attempt to slacken speed; that when plaintiffs' driver was 40 feet...