Kowalski v. Malone

• Decision Date: 07 December 1949
• Docket Number: No. 32,32
• Citation: 326 Mich. 254,40 N.W.2d 143
• Parties: KOWALSKI v. MALONE.
• Court: Michigan Supreme Court

Page 143

40 N.W.2d 143

326 Mich. 254

KOWALSKI v. MALONE.

No. 32.

Supreme Court of Michigan.

Dec. 7, 1949.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendant and appellant.

Wm. H. Frankhauser, Coldwater (Jack R. Sutherland, Coldwater, of counsel), for plaintiff and appellee.

Before the Entire Court.

NORTH, Justice.

This is an appeal by defendant Forrest Malone from a judgment against him in a suit arising out of an automobile collision. The accident occurred in the afternoon of March 1, 1947, at a right angle intersection of two graveled highways near Bronson, in Branch county. There was some snow on the ground but the road was not icy, nor were there other unusual or hazardous travel conditions. Neither of these intersecting highways had a stop sign nor was vehicular traffic on one given priority over that on the other. The traveled portion of the north and south road was approximately 23 feet wide and that of the east and west road approximately 20 feet wide. At the intersection the corners of the traveled portions were somewhat rounded.

Plaintiff was traveling north in a Ford Tudor automobile between 15 and 20 miles per hour as she neared the intersection. She made her first observation for traffic approaching on the intersecting road when the front of her automobile was six to eight feet south of the south line of the intersection at that point, notwithstanding there were some sumac, brush and shrubs west of the intersection on the south side of the road, plaintiff has a view west along the highway about to a 'slow' sign located on the south side of the east and west road 258 feet from the center of the intersection. Plaintiff testified that she 'did not see any traffic coming' and thought she would have time to cross the intersection safely.

Defendant, driving a truck with a four ton load of logs, was approaching the intersection from the west, driving in second gear at 10 miles per hour. He was familiar with the intersection. He knew about the 'slow' sign and saw it. When defendant was 10 feet west of the center of the intersection he first saw plaintiff who was then about 15 feet south of the middle of the intersection. He testified he did not apply his brakes because he 'was afraid the logs would go through my cab at that speed * * *.' Plaintiff did not see the on-coming truck until her car was in the intersection and just an instant before the impact. The collision occurred when plaintiff's automobile was 'slightly to the north of the center of the intersection' on the east side of the north and south road. It happened so suddenly after she saw the truck that plaintiff did not have time to apply her brakes or otherwise avoid the accident. In an effort to avoid the collision defendant turned the truck to his left, and the impact occurred in the northeast portion of the intersection. The front end of the truck struck the Ford just back of the left front fender and at the left hand door. The Ford was not tipped over. After the collision each of the vehicles came to rest near the northeast corner of the intersection.

At the close of plaintiff's proofs defendant made a motion for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law. Ruling on this motion was reserved. It was renewed at the conclusion of all the proofs and decision again was reserved. Later defendant's motion for judgment notwithstanding the verdict was denied. On this appeal defendant's first contention is that the trial court was in error in denying defendant's motion for judgment notwithstanding the verdict.

Defendant in support of its motion asserts plaintiff's contributory negligence as a matter of law primarily on the ground that she failed to exercise reasonable care in that she either did not make an observation for oncoming cross traffic as she was about to traverse the intersection, or if (as she testified) she did make such observation she failed to see defendant's truck which must have been approaching clearly within the range of her vision and in such proximity to the intersection as to render plaintiff guilty of negligence in proceeding to cross the intersecting highway. In reviewing this phase of the record we assume that defendant's negligence was established, and on such review the record must be construed in the light most favorable to plaintiff. Shank v. Lucker, 296 Mich. 705, 296 N.W. 852; Saunders v. Joseph, 300 Mich. 479, 2 N.W.2d 471. Further, as plaintiff approached this intersection she was at the right of defendant's vehicle and had the right of way. C.L.1948, § 256.320, Stat.Ann. § 9.1580. None-the-less plaintiff was obligated to use reasonable care in traversing the intersection. The statute does not abrogate the duty of the favored driver to exercise reasonable care. See Kerr v. Hayes, 250 Mich. 19, 229 N.W. 430; Smith v. Wassink, 262 Mich. 639, 247 N.W. 766. Quoting from Swainston v. Kennedy, 253 Mich. 518, 235 N.W. 240, in Security Storage & Transfer Co. v. Quimby, 268 Mich. 259, 256 N.W. 331, 332, we said: 'Automobile drivers approaching street intersection at right angles to each other are each required to use such care under circumstances as would be required of ordinarily prudent person to avoid collision * * *.'

The pertinent facts may be summarized as follows. Plaintiff testified that she was familiar with the intersection, that as she approached it she had her car under control, that just before...