Marciniak v. Sundeen

• Decision Date: 28 December 1936
• Docket Number: No. 112.,112.
• Citation: Marciniak v. Sundeen, 278 Mich. 407, 270 N.W. 729 (Mich. 1936)
• Parties: MARCINIAK v. SUNDEEN.
• Court: Michigan Supreme Court

278 Mich. 407

270 N.W. 729

MARCINIAK

v.SUNDEEN.

No. 112.

Supreme Court of Michigan.

Dec. 28, 1936.

Action by Catherine Marciniak, administratrix of the estate of William Marciniak, deceased, against Hans R. Sundeen. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Oakland County; Glenn C. gillespie, judge.

Argued before the Entire Bench, except POTTER, J.

Frank S. Caswell, of Detroit (John F. Wood, of Detroit, of counsel), for appellant.

Clyde L. Fulton, of Highland Park (Colin J. McRae, of Highland Park, of counsel), for appellee.

BUSHNELL, Justice.

This negligence case was tried by the court without a jury. The court found that, under either party's version of the testimony, both were guilty of negligence, and accordingly entered a judgment for defendant.

The accident occurred within the intersection of Hoover road and Ten Mile road in Macomb county between the hours of 5 p. m. and 7 p. m. on July 2, 1933, while it was still daylight. The pavement was dry, and there was nothing to prevent either driver seeing the other as they approached the intersection. Ten Mile road runs east and west, and Hoover road north and south; both are paved, and over the center of the crossing is a yellow, electric, flashing warning signal which shows in both directions at all times. There are stop signs on Ten Mile road for those crossing Hoover road, the latter being a through highway.

Plaintiff's decedent with two other young men were proceeding in a southerly direction on Hoover road towards the city of Detroit in a Ford roadster which decedent was driving, the two others being seated by his side. When decedent's car was about 25 yards from the intersection, decedent's passengers observed defendant's car approaching Hoover road. The westbound car driven by defendant hit decedent's car, throwing the latter into the ditch and fatally injuring its driver. Both of decedent's passengers say that neither car altered its speed before the accident, and further agree that when they first observed defendant, he was twice as far from the center of the intersection than they were themselves. Defendant claims that he slowed down to about two or three miles per hour while passing the stop sign on Ten Mile road and was forced to put his car into second gear before entering the intersection; that he looked to the right and left and saw nothing; and that while proceeding slowly across Hoover road, something flashed by him and the crash followed. He said that his car was spun around, thrown to the south side of the road, and came to a stop facing the west, but over on its right side, and that the frame of his car was bent to the left. While he admits that he struck decedent's car in front of its left rear fender, he claims that he believed Hoover road was safe to cross because he did not see any approaching traffic within his clear vision north and south of 500 feet. One of his passengers said that he made like observations with the same result. The court in entering a judgment, said:

‘The rule is well settled in cases of this kind that the burden rests upon the plaintiff to establish, not only that the accident was caused by the negligence of the defendant, but that the plaintiff was free from contributory negligence. Now, so far as the question of defendant's negligence is concerned, under the defendant's own testimony, he admits he did not bring his car to a full stop. He testified that he slowed down 3 to 5 miles an hour and shifted into second gear. He did not stop before entering the intersection, and I think under the well settled rule, it must be held that he was negligent.

‘Now, on the other hand, we take the version of the plaintiff's own witnesses. There is no doubt in my mind but that he was guilty of contributory negligence. Both of these witnesses testified that they looked to the east and saw the defendant's car approaching the intersection at a high rate of speed. The deceased made no effort to check the speed of his car and drove into the intersection at a speed, which the witnesses testify, was from 25 to 30 miles an hour. Had the deceased looked to the east he could have seen the car approaching. Certainly the danger was open and obvious to the drivers of both cars, had either one of them paid any attention to the existing traffic on the highway. The view was unobstructed at this intersection. I am satisfied that both of the drivers were guilty of negligence under the version of either one. Under those circumstances, I don't see how the court can permit any recovery.’

At the close of plaintiff's testimony, defendant asked for a directed verdict on the ground that plaintiff's decedent was guilty of contributory negligence as a matter of law. The trial judge directed the defendant to proceed and indicated that he would ‘overrule the motion for the present.’ After...