McKinney v. Yelavich

• Decision Date: 12 June 1958
• Docket Number: No. 37,J,37
• Citation: 90 N.W.2d 883,352 Mich. 687
• Parties: John McKINNEY, Plaintiff and Appellee, v. John Ivan YELAVICH, Defendant and Appellant. anuary Term.
• Court: Michigan Supreme Court

Page 883

90 N.W.2d 883

352 Mich. 687

John McKINNEY, Plaintiff and Appellee, v. John Ivan YELAVICH, Defendant and Appellant.

No. 37, January Term.

Supreme Court of Michigan.

June 12, 1958.

Erickson, Dyll, Marentay, Van Alsburg & Slocum, Detroit, for defendant and appellant.

Ward, Plunkett & Cooney and Rosin & Kobel, Detroit, for plaintiff and appellee.

Before the Entire Bench except EDWARDS, J.

SMITH, Justice.

We need no more than summarize the facts, which are fully set forth in my brother's opinion. Before us we have an automobile-pedestrian accident at a complex six-way street intersection. The plaintiff had started his crossing under the protection of a light displaying the word 'walk.' He was struck before completing his journey.

The case, however, is unusual. This is not because of its fact situation. A pedestrian lawfully in the crosswalk, proceeding as authorized by sign erected for his guidance, struck down by an automobile violating the law, is no novelty. Nor is it new to our legal thinking that he be prevented from recovery against the motorist by the holding of this Court that he was guilty of contributory negligence 'as a matter of law.' Our Michigan lawbooks are full of the abortive jump and sprint cases, the situations in which pedestrians encumbered by the frailties of old age, physical infirmity, infancy, obesity, or deficient locomotion, have not moved with sufficient alacrity to avoid the oncoming car. We examined some of these holdings in the recent case of Bartlett v. Melzo, 351 Mich. 177, 88 N.W.2d 518, to which we again profess our adherence.

The case before us is unusual, however, in the clarity with which is revealed the source of much of our error. We have tried to substitute specific roles of behavior for a general standard of care. All will agree, of course, that negligence is conduct that fails to measure up to an acceptable standard. The standard now employed by the law is that of a reasonably prudent man acting under the same or similar circumstances. Whether or not the standard has been attained is, normally, a jury question. ¹ Only under the most extreme circumstances, those, in fact, where reasonable minds could not differ upon the facts, or the inferences to be drawn therefrom, can the case be taken from the jury. If honest differences of opinion between men of average intelligence might exist the issue should not be resolved by the court alone.

These truisms have been repeated again and again in the decided cases but their repetition in many cases in the last quartercentury has amounted to no more than the rotation of a prayer wheel, since, with monotonous regularity, we have thereupon proceeded to do just what we said should not be done, namely, to take the case from the jury (or, as here, the trier of the facts) on the ground that there was negligence, or contributory negligence, 'as a matter of law.' The theory upon which this is done demands our present attention. A return to fundamentals is in order.

The attainment, or lack of attainment, of the standard of due care can be predicated only upon the existence of certain facts.

For example, under some circumstances a jury may be permitted to find, under proper instructions, that a failure to 'stop, look and listen' before crossing a railroad track amounted to a failure to exercise due care under the circumstances. If this finding is permitted to petrify into a hard and fast 'rule' (i. e., that it is negligence per se to fail to stop, look and listen under all circumstances before crossing a railroad track), absurd and unjust results will inevitably follow. Thus the Pennsylvania court, which had long adhered to such a rule, held, in the case of Benner v. Philadelphia & Reading R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R. 759, that it was contributory negligence as a matter of law for a driver to fail to stop before crossing a private railroad siding. But he suffered no harm on this siding. He was killed on the main line, beyond the siding, and adjacent thereto. Before, however, attempting to cross the main line he had, in fact, stopped and made observation, but he had not seen the fast express that killed him because of a curve in the tracks. Nevertheless, his antecedent failure to stop before crossing the private siding barred his widow's action. The private siding was, after all, 'a' track and the rule applies to 'any' track. 'It is an absolute and unbending rule,' held the majority, 'that a traveler upon the public highway must stop, look and listen at a point before he crosses any tracks. * * * [We are asked] to make an exception of this case and to say that because Benner was not injured on the first track his failure to stop before crossing it did not produce the accident. This is bending the rule which has been declared to be unbending.'

A similar effort directed towards rule-canonization in the Supreme Court of the United States proved less successful. Mr. Justice Holmes had lent the weight of his prestige to the 'rule' that if a plaintiff could not otherwise ascertain the dangerous proximity of a train, he was under a duty to get out of his car and examine the tracks. Baltimore & Ohio R. Co. v. Goodman, 1927, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167. The effort was doomed to failure. So long as courts exist to do justice between the parties they can be bound by no fixed rules of behavior. What may be extreme caution under one set of circumstances may be the essence of recklessness under another. As Justice Cardozo pointed out in Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580, 582, 78 L.Ed. 1149:

'Besides being uncommon, it [to get out of a vehicle and reconnoiter] is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. See, e. g., Torgeson v. Missouri-K.-T. R. Co., 124 Kan. 798, 800, 801; 262 P. 564, 55 A.L.R. 1335; Dobson v. St. Louis S. F. R. Co., supra, [223 Mo.App. 812, 10 S.W.2d 528]; Key v. Carolina & N. W. R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 530. Often the added safeguard will be dubious though the track happens to be straight, as it seems that this one was, at all events as far as the station, about five blocks to the north. A train traveling at a speed of thirty miles an hour will cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction. At times the course of safety may be different. One can figure to oneself a roadbed so level and unbroken that getting out will be a gain. Even then the balance of advantage depends on many circumstances and can be easily disturbed. * * *

'Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury.'

The caveat with which Justice Cardozo closed his opinion has a peculiar applicability to the situation in which the courts and litigants of Michigan now find themselves as a result of our tenacious adherence to 'rules' of negligence imported from unlike fact situations. As we said in Krause v. Ryan, 344 Mich. 428, 433, 434, 74 N.W.2d 20, 23:

'* * * can we cite broadly from one negligence situation to another? We fear not. The field of negligence is too broad. We find within it all kinds and conditions of men, from the surgeon at the operating table to the child at the edge of the highway, measuring with uncertain gaze and rising panic the speed of the oncoming truck against the distance to safety. Both situations, it is true, involve care, and both involve humans, but there the similarity stops. Even in that relatively narrow area of negligence involving moving vehicles, intersections, pedestrians, stop sings, arterial highways and traffic lights we find an infinite variety of problems, each with its peculiar circumstances, its unique considerations of care or the lack thereof. At the moment our problem is the determination of negligence on the high-speed, heavy-volume artery of traffic, known as the expressway, the throughway, or the arterial highway. It has its own peculiar considerations, arising out of its peculiar hazards. It cannot be solved by 'rules' taken from negligence opinions in other fields. The policy behind the construction of the great expressways is not involved in the cases relating to ordinary street intersections (as to which we had a statutory right of way for many years and before that a common law preference). Such cases may guide us, but they cannot control our decision here.'

We have elaborated upon the history of the stop, look and listen 'rule' because it is characteristic of a host of others. Each has its origin in a justifiable holding in a particular fact situation. By lazy repetition the holding becomes a 'rule,' entirely divorced from its creative facts. It grows as an excrescence of injustice until its...