Moore v. Noorthoek
| Decision Date | 07 June 1937 |
| Docket Number | No. 67.,67. |
| Citation | 273 N.W. 758,280 Mich. 431 |
| Parties | MOORE v. NOORTHOEK et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Dulcie Moore against Adrian M. Noorthoek and another. From an adverse judgment, defendants appeal.
Affirmed.
Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.
Argued before the Entire Bench.
Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellants.
Annis & Cooper and Paul E. Cholette, all of Grand Rapids, for appellee.
On the night of March 28, 1936, at about the hour of 8 p. m., plaintiff, a woman of mature years, in crossing Plainfield avenue in the city of Grand Rapids was struck by an automobile driven by defendant Adrian M. Noorthoek, title to which automobile was in the joint names of Adrian Noorthoek and Minnie Noorthoek, his wife.
Plainfield avenue runs northeasterly and southwesterly about 30 degrees east of north. It is 42 feet between curbs, and in the center of the street are two sets of street car tracks. The easterly rail of the east track is 13.6 feet west of the east curb, and the westerly rail of the west track is 13.6 feet east of the west curb, and between the two tracks is a distance of 5.4 feet. Sweet street runs east and west and intersects with Plainfield avenue.
Plaintiff claims she was walking west on the southerly crosswalk across Plainfield avenue; that when she stepped off the east curb she saw defendants' car traveling from the north on the westerly side of Plainfield avenue; that she walked to the middle of the street and again made observation to the north and saw the defendants' car 160 to 164 feet north of where she was standing, but that she formed no judgment as to its speed; and that she continued on to the west and when she stepped over the west rail of the westerly track, or between the westerly rail and the curb, she was hit by defendants' car.
Defendant Adrian Noorthoek claims that plaintiff came from the westerly curb traveling in an easterly direction at a point some distance south of the crosswalk; that she ran into the right front portion of his car and was thrown to the center of the street; and that he brought his car almost immediately to a stop. Plaintiff was taken to Butterworth Hospital, where the doctor found an injury to her left foot, right hip, both knees, and a possible skull fracture.
The cause was tried before the court and a jury and resulted in a verdict for plaintiff. The record also shows that defendants moved for a directed verdict at the close of plaintiff's proof. This motion was denied as was also their motion for a new trial.
Defendants appeal and contend that the trial court was in error in refusing to direct a verdict of no cause of action as to Minnie Noorthoek on the ground that she had no control over the operation of the automobile which collided with plaintiff; that plaintiff was guilty of contributory negligence as a matter of law; and error upon the part of the trial court in charging the jury as follows:
* * *
‘I will say to you further, as a matter of law, that this plaintiff in crossing this intersection, after she had entered the intersection and proceeded across the center of the intersection, and was approaching the west half and about to cross the west half, that it was the duty of this defendant, traveling from the north and on the westerly side of this highway, to yield the right-of-way to this pedestrian; in iother words, it was his duty to see her as she was crossing in the manner in which she claims-understand he claims she was not crossing there-but if she was crossing as she claims, it was his duty to see her and to yield the right-of-way to her and avoid striking and running into her.’
We find no error upon the part of the trial court in its refusal to discharge Minnie Noorthoek, wife of Adrian M. Noorthoek, and a joint owner of the automobile. Section 4648, 1 Comp.Laws 1929, provides as follows:
In Buchel v. Williams, 273 Mich. 132, 262 N.W. 759, we held a joint owner liable when the car was driven with her knowledge and consent and for the benefit of the joint owners. The ruling in the above case is controlling as to the facts in the case at bar.
In determining whether or not plaintiff was guilty of contributory negligence, we have in mind that on the night of the accident the weather was clear, visibility good, and the pavement dry, the street lighted at the intersection, there were no cars approaching to interfere with either plaintiff or defendant's view, and the scene of the accident being in a business section within the meaning of 1 Comp.Laws 1929, § 4697(b) ( Pub.Acts 1933, No. 119), which provides a maximum speed of 15 miles per hour, and article 7, section 1, of the traffic ordinances of the city of Grand Rapids, which provides as follows: ‘The operator of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by police officers or traffic signals.’
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