Malone v. Vining
Decision Date | 07 January 1946 |
Docket Number | No. 65.,65. |
Citation | 313 Mich. 315,21 N.W.2d 144 |
Parties | MALONE v. VINING et al. |
Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE 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.
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. * * *
* * *
* * *
‘ * * *
‘Then the next I saw Mr. Malone, he was running and ran right in front of my machine.
* * *
* * *
* * *
* * *
* * *
‘I put my brakes on and I hit him. * * *
* * *
‘I saw him when he would be almost even with the car, when he took that last step in front of the car. * * *
Plaintiff testified in part:
* * *
* * *
* * *
* * *
‘When I was about two feet and a half south of the center line, the car struck me. * * *
‘There were no other cars anywhere in sight at that time; just this one car driven by Mrs. Vining.’
Defendant driver saw plaintiff standing on the north side of the pavement and, although her view was unobstructed, she did not again observe him until the instant before the collision. Her testimony, together with other evidence and the physical facts and circumstances surrounding the accident, clearly presented a question of fact for jury determination as to whether or not she was negligent.
Assuming, for the purpose of this opinion, that defendant driver was negligent, the next and more serious question is whether or not plaintiff was guilty of contributory negligence as a matter of law. Immediately preceding the accident plaintiff was standing in a place of safety on the north...
To continue reading
Request your trial-
Ortisi v. Oderfer
...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
...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
...degree 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 144." Plaintiff in this case, while waiting to enter the intersection, was in a place of safety; she would not have jeopa......