MacDonald v. Skornia, 41.

• Decision Date: 04 October 1948
• Docket Number: No. 41.,41.
• Citation: 322 Mich. 370,34 N.W.2d 4
• Parties: MacDONALD v. SKORNIA.
• Court: Michigan Supreme Court

322 Mich. 370

34 N.W.2d 4

MacDONALD

v.SKORNIA.

No. 41.

Supreme Court of Michigan.

Oct. 4, 1948.

Appeal from Circuit Court, Bay County; Karl K. Leibrand, Judge.

Action by Donald MacDonald against Albin Skornia to recover for injuries sustained in automobile collision. From an adverse judgment, the defendant appeals.

Judgment reversed and judgment entered on defendant's motion for judgment notwithstanding verdict.

BUSHNELL, C. J., and CARR and REID, JJ., dissenting.

Before the Entire Bench, except SHARPE, J.

Oscar W. Baker, Jr., of Bay City, for plaintiff and appellee.

Stanton, Montgomery, MacKenzie & Cartwright, of Saginaw, for defendant and appellant.

DETHMERS, Justice.

I do not concur in the opinion written by the CHIEF JUSTICE.

Plaintiff testified that he made one observation of defendant's automobile when it was about 120 feet from the intersection but made no estimate of the speed at which it was approaching and that, in fact, he would have been unable to say at the time whether defendant's car was ‘parked or coming.'

Applicable to the facts in this case is the following from Ann Arbor Construction Co. v. Russ, 312 Mich. 527, 20 N.W.2d 298, 300:

‘In DiMatteo v. Smith, 309 Mich. 640, 16 N.W.2d 104, 106, we quoted with approval from Stuck v. Tice, 291 Mich. 486, 289 N.W. 225, as follows:

“Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame.'

‘The facts in all the cases set forth in the briefs differ but the general rule remains the same. There are exceptions where one of the drivers suddenly accelerates his speed or without any reason changes the direction of his car.'

The quoted statement is no mere arbitrary judicial pronouncement, but a recognition of the fact that normally a collision will not occur between two automobiles at an intersection when both drivers observe the duties which we have repeatedly held repose upon them. What are those duties?

This court has held time and again that the driver of an automobile must make proper observation before entering an intersection. If he enters without looking up and down the street intersecting with that on which he is travelling for approaching traffic, he, as a plaintiff, is guilty of contributory negligence as a matter of law. A few of our many decisions so holding are: Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618;Kerr v. Hayes, 250 Mich. 19, 229 N.W. 430;Kok v. Lattin, 261 Mich. 362, 246 N.W. 149;Ehrke v. Danek, 288 Mich. 498, 285 N.W. 37;Gallagher v. Walter, 299 Mich. 69, 299 N.W. 811.

No idle ceremony is subserved by the requirement that such plaintiff maintain a lookout. He is equally held to be guilty of contributory negligence if he looks and proceeds without seeing approaching traffic which is there plainly to be seen. Zuidema v. Bekkering, 256 Mich. 327, 239 N.W. 333;Knight v. Merignac, 281 Mich. 684, 275 N.W. 732;Carey v. De Rose, 286 Mich. 321, 282 N.W. 165. Furthermore, if he takes but a fleeting glimpse and sees a vehicle approaching on the intersecting street, but proceeds into the intersection without giving the other vehicle any further heed, he is guilty of contributory negligence as a matter of law. Boerema v. Cook, 256 Mich. 266, 239 N.W. 314;Block v. Peterson, 284 Mich. 88, 278 N.W. 774;Koehler v. Thom, 285 Mich. 593, 281 N.W. 336;Nelson v. Linderman, 288 Mich. 186, 284 N.W. 693;Lacaeyse v. Roe, 310 Mich. 591, 17 N.W.2d 765;Martin v. Department of Street Rys. of City of Detroit, 314 Mich. 77, 22 N.W.2d 78.

A driver who proceeds into an intersection without ascertaining whether traffic is approaching on the intersecting street is not excused by the fact that his view, as he approaches the intersection, is obstructed. As we said in Plaskett v. Van Buren County Road Commission, 295 Mich. 54, 294 N.W. 95, 97:

‘If we consider that the view of the intersection is obscured, then it is the duty of drivers in approaching the intersection to use such care under the circumstances as would be required by an ordinarily prudent person.'

In Ehrke v. Danek, supra, we held that under such circumstances, when the view is so obstructed, an ordinary, reasonable, prudent and careful person would stop in a position of safety from which due observation could be made, and look to ascertain to a certainty whether another vehicle is approaching the intersection behind the obstruction. A plaintiff who neglects so to do is guilty of contributory negligence as a matter of law. See also Cline v. Killingbeck, 288 Mich. 126, 284 N.W. 669;Hekman Biscuit Co. v. Commercial Credit Co., 291 Mich. 156, 289 N.W. 113.

A driver is required, before entering an intersection, to make suitable observation of approaching cars, and, from conditions as they appear to him, to form a reasonable belief that he can cross the intersection in safety. Kerr v. Hayes, supra; Francis v. Rumsey, 303 Mich. 526, 6 N.W.2d 766.

To summarize, we have consistently held guilty of contributory negligence as a matter of law plaintiff drivers entering intersections who do not look at all, or who look but fail to see what is there to be seen, or who give what is there to be seen a fleeting glimpse but no further heed, or who look but find the vision obscured and proceed into the intersection without ascertaining whether traffic is approaching behind the obstruction, or who fail, after observation, to form therefrom a reasonable belief that the intersection can be crossed in safety. It is manifest, therefore, that a driver is required upon entering an intersection not only to look, but also to see and form an opinion as to all the factors essential to the final requirement, viz., the forming of a reasonable conclusion that the intersection can be crossed in safety. To look, yet fail to observe whether the car headed in his direction on the intersecting street is parked or moving or, if moving, then at what speed, is but little better than not to look at all. It is no better than to look and fail to see what is there to be seen or to take but a fleeting glimpse and give the approaching car no further heed. The fact, as claimed by plaintiff, that, due to the small angle, which gave plaintiff almost a head-on view of defendant's car, it was impossible for plaintiff to estimate defendant's speed or to determine whether he was moving at all, left plaintiff with no less of a duty reposing on him than that which we have held rests on the driver whose view is obstructed. While plaintiff testified that he formed the belief that he could proceed in safety, that belief was not a reasonable one because he failed to apprise himself of defendant's speed, an element absolutely essential to the formation of such a reasonable belief.

We have heretofore held that a plaintiff's failure, under such circumstances, to determine the speed of defendant's approaching automobile renders plaintiff guilty of contributory negligence as a matter of law. In Lodato v. Campbell, 284 Mich. 217,278 N.W. 852, this court said:

‘Plaintiff * * * claims he looked to his left and saw defendants' car approaching from that direction, at a distance of about 500 feet and, without being able to estimate its speed, he thought he had time to cross in safety, so put his car in motion at a speed of from 7 to 8 miles per hour, and proceeded to cross the northerly lane of Grand River avenue, over which defendants' car was approaching. * * *

‘Plaintiff was guilty of contributory negligence as a matter of law.'

Concerning a plaintiff involved in an intersection collision we said in Ayers v. Andary, 301 Mich. 418, 3 N.W.2d 328, the following:

‘On the record before us it clearly appears that the driver of the car in which plaintiff was riding was guilty of contributory negligence as a matter of law. * * *

‘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 another intersection collision case, Francis v. Rumsey, 303 Mich. 526, 6 N.W.2d 766, 769, we said:

‘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; * * *.

‘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 was guilty of contributory negligence as a matter of law.'

In Waskelis v. Continental Baking Co., 310 Mich. 649, 17 N.W.2d 785, 786, we said:

‘In our discussion of plaintiff's negligence, we shall assume that the trial court found plaintiff guilty of contributory negligence as a matter of law. In such cases we consider plaintiff's testimony in a light most favorable to him. He stated that he drove his car about 25 feet from the east curb line of Trumbull avenue when the collision occurred, at a rate of speed of from 5 to 10 miles per hour, without making any observation as to the speed of defendant's truck. We think the facts in this case are similar to those in Ayers v. Andary, 301 Mich. 418, 3 N.W.2d 328, 329. In that case, the driver of plaintiff's car saw defendant's car when it was 125 to 150 feet away from the intersection, yet attempted to cross the street traveling at a speed of 18 to 20 miles per hour. When half way across the street, plaintiff again saw defendant's car 30 to 35 feet away traveling at a speed of approximately 60 miles...