Malone v. Vining, 65.
| Court | Supreme Court of Michigan |
| Writing for the Court | STARR |
| Citation | 313 Mich. 315,21 N.W.2d 144 |
| Parties | MALONE v. VINING et al. |
| Docket Number | No. 65.,65. |
| Decision Date | 07 January 1946 |
313 Mich. 315
21 N.W.2d 144
MALONE
v.
VINING et al.
No. 65.
Supreme Court of Michigan.
Jan. 7, 1946.
Appeal from Circuit Court, Wayne County; Adolph F. Marchner, judge.
Action by Fred Malone against Horace Vining and another for personal injuries sustained when struck by an automobile. From an adverse judgment, defendants appeal.
Reversed.
Before the Entire Bench.
Alexander, McCaslin, Cholette & Buchanan, by G. Cameron Buchanan, all of Detroit, for plaintiff and appellee.
Stewart Ricard, of Detroit, for defendants and appellants.
[21 N.W.2d 145]
STARR, Justice.
Defendants appeal from a judgment of $5,160.70 entered on jury verdict for plaintiff.
On May 12, 1942, at about seven o'clock in the morning, defendant Frances Vining was driving an automobile owned by her husband defendant Horace Vining east on Nine Mile road in Macomb county. This is a paved highway 18 to 20 feet wide, running east and west, and is intersected by Mound road which runs north and south. A construction company was laying pipe along the south side of Nine Mile road east of Mound road. Its back-filler machine was standing on the south half of the pavement a short distance east of Mound road. About 50 feet further east the company's pull-shovel nachine was standing off the pavement on the south shoulder of the road. It was necessary for east-bound traffic to turn on to the north side of the pavement in order to pass the back-filler machine. There was a sign, ‘slow-men working,’ on the pavement west of the back filler, and a construction company employee was directing east-bound traffic to the north side of the pavement. As defendant driver passed the intersection of Mound road and approached the back filler, she observed the ‘slow’ sign and was directed to turn on to the north (wrong) side of the highway. She made the turn and proceeded on the north side at a speed of about five miles an hour until she had passed the back filler. She then turned back to the south (right) side of the pavement, and as she was completing the turn, her car struck and severely injured plaintiff, an employee of the construction company, who was walking or running from the north to the south side of the highway. The left front fender of her car struck him when he was about two or three feet south of the center line of the highway.
Plaintiff began the present suit to recover his damages resulting from the accident, alleging negligence on the part of defendant driver. Defendants answered, denying the charge of negligence and alleging that plaintiff was guilty of contributory negligence. Defendants' motion for a directed verdict was denied, and the case was submitted to the jury, which returned a verdict of $5,160.70 on which judgment was entered. Defendants' motions for a judgment in their favor and for a new trial were denied, and they appeal.
Defendant driver, who was called by plaintiff for cross-examination under the statute, 3 Comp.Laws 1929, § 14220, Stat.Ann. § 27.915, testified in part as follows:
‘I noticed some construction work on the south side of Nine Mile road. There were two machines, a large one on the south half on Nine Mile road and a smaller one that set to the side of the road. * * *
‘As I proceeded east and approached the ‘slow’ sign, it was necessary for me to go on the north side of the pavement until I passed the back filler. * * *
‘Then I turned right to get on the south side of the pavement. * * *
‘At the time of this accident, I was straightening my front wheels, just making the curve. Both of my front wheels were on the south side. * * *
‘I saw Mr. Malone before the accident. When I first saw him, he crossed the street. He went from the south side to the north side. * * * After reaching the north edge of the pavement, he stood still. * * *
‘Q. Where did you next see him? * * * A. Well, he turned. He was standing there and he called to (other workmen) across the street and I thought they would be coming in front of the back filler and tooted the horn. I looked to the right.
‘Q. You looked down to the right, that is, down toward the machine? A. Yes. * * *
‘Then the next I saw Mr. Malone, he was running and ran right in front of my machine.
‘Q. Did he come back right straight across where he was? A. No, he was on an angle. * * *
‘Q. Did you see him leave the north shoulder? A. No, I did not. * * *
‘Q. Where was he when you saw him after you saw him standing on the north shoulder? A. In front of my car. * * *
‘Q. And at that time your car was back over on the south side of the pavement? A. Partly. * * * I had gotten across on the south side with my front wheel straightened. I wouldn't say my back wheels were clear across. I imagine I must have been fully across and straightened because my front wheels were straightened, completely on the south side of the pavement.
[21 N.W.2d 146]
‘Q. So, you did not see him cross from the north shoulder down to the south side of the road? A. Not until he got in front of my car. * * *
‘I didn't see Fred Malone cross from the north shoulder of Nine Mile...
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Ortisi v. Oderfer, 4
...the various duties required of a pedestrian who undertakes to cross the street. The case most frequently cited is malone v. Vining, 313 Mich. 315, 21 N.W.2d 144, 146, in which it was 'Under present-day traffic conditions a pedestrian, before crossing a street or highway, must (1) make prope......
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Conant v. Bosworth, s. 57
...across the south half of the pavement under the circumstances was negligence. Among other decisions of like import are: Malone v. Vining, 313 Mich. 315, 21 N.W.2d 144; Long v. Garneau, 319 Mich. 291, 29 N.W.2d 696; Boyd v. Maruski, 321 Mich. 71, 32 N.W.2d Under the proofs in the cases at ba......
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Johannes v. Rooks, 63.
...before starting to cross the highway or at any time thereafter until it was too late to avoid the accident. In Malone v. Vining, 313 Mich. 315, 21 N.W.2d 144, 146, this court said: ‘Under present-day traffic conditions a pedestrian, before crossing a street of highway, must (1) make proper ......
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Buehler v. Beadia, 41
...of care and caution which an ordinarily careful and prudent person would exercise under like circumstances.' Malone v. Vining (syllabus), 313 Mich. 315, 21 N.W.2d Page 307 Plaintiff in this case, while waiting to enter the intersection, was in a place of safety; she would not have jeopardiz......
-
Ortisi v. Oderfer, 4
...the various duties required of a pedestrian who undertakes to cross the street. The case most frequently cited is malone v. Vining, 313 Mich. 315, 21 N.W.2d 144, 146, in which it was 'Under present-day traffic conditions a pedestrian, before crossing a street or highway, must (1) make prope......
-
Conant v. Bosworth, s. 57
...across the south half of the pavement under the circumstances was negligence. Among other decisions of like import are: Malone v. Vining, 313 Mich. 315, 21 N.W.2d 144; Long v. Garneau, 319 Mich. 291, 29 N.W.2d 696; Boyd v. Maruski, 321 Mich. 71, 32 N.W.2d Under the proofs in the cases at ba......
-
Johannes v. Rooks, 63.
...before starting to cross the highway or at any time thereafter until it was too late to avoid the accident. In Malone v. Vining, 313 Mich. 315, 21 N.W.2d 144, 146, this court said: ‘Under present-day traffic conditions a pedestrian, before crossing a street of highway, must (1) make proper ......
-
Buehler v. Beadia, 41
...of care and caution which an ordinarily careful and prudent person would exercise under like circumstances.' Malone v. Vining (syllabus), 313 Mich. 315, 21 N.W.2d Page 307 Plaintiff in this case, while waiting to enter the intersection, was in a place of safety; she would not have jeopardiz......