Morrison v. City of Detroit, 9597.

• Decision Date: 31 January 1944
• Docket Number: No. 9597.,9597.
• Citation: 140 F.2d 625
• Parties: MORRISON v. CITY OF DETROIT.
• Court: U.S. Court of Appeals — Sixth Circuit

140 F.2d 625 (1944)

MORRISON v. CITY OF DETROIT.

No. 9597.

Circuit Court of Appeals, Sixth Circuit.

January 31, 1944.

Royal W. Irwin, of Chicago, Ill. (Royal W. Irwin, of Chicago, Ill., and Maxwell I. Silverstein, of Detroit, Mich., on the brief), for appellant.

Leo A. Sullivan, of Detroit, Mich. (Rodney Baxter, Leo A. Sullivan, and A. Albert Bonczak, all of Detroit, Mich., on the brief), for appellee.

Before HICKS, HAMILTON, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This is an appeal from a directed verdict of no cause of action against a plaintiff in a personal injury case, arising from a collision between a streetcar and an automobile, at a street intersection in the City of Detroit.

On November 9, 1941, at about 11 o'clock at night, an automobile, driven by Harold Asplin, in which appellant was riding as a passenger, was proceeding south on Fourteenth Street, approaching the right-angle intersection of Bagley Avenue, an east-and-west street. The streetcar was coming from the east; the automobile from the north; and as the automobile was crossing the intersection in a southerly direction, its left rear wheel was struck, just as it was passing over the farther, or south, rail of the track on which the streetcar was approaching.

In view of the issues in the case, some further description of the intersection is required. Bagley Avenue commences its upward incline to the west, about a half block from the intersection, and passes over a viaduct, about fifty feet to the west of the intersection in question. Fourteenth Street, likewise, commences its upward incline approximately a block from the intersection, seemingly passing over another viaduct just to the south of Bagley Avenue. Both the automobile and the streetcar were, therefore, proceeding uphill toward the point of collision. Furthermore, just west of Fourteenth Street, another street, Fifteenth, coming in on an angle from the north toward Fourteenth Street, intersects Bagley Avenue.

Fourteenth Street is 46 feet wide. The distance between Fourteenth and Fifteenth streets, at their intersection with Bagley Avenue, is less than the width of Fourteenth Street. Fourteenth and Fifteenth streets merge into Fourteenth on the south side of Bagley Avenue. This results in a large, open, triangular street space, some 200 feet in length, along two sides, and nearly 150 feet along the third side. Traffic at the triangle moves, therefore, in six directions at the intersection, and up or down hill in four directions.

According to testimony introduced on behalf of appellant, the driver of the car in which she was riding, in approaching Bagley Avenue from the north, came to a stop at a stop sign about 12 feet from the intersection of Bagley and Fourteenth Street. The driver made observation to his right, and saw no traffic coming from that direction. He then looked to the left, but his view was obstructed by a two-story building, which was built out to the sidewalk lines on the northeast corner of the streets. At that time, he could only see 50 feet down Bagley Avenue in the direction from which the streetcar was approaching. Seeing no traffic there, he proceeded out into the intersection in low gear. In certain details, the testimony of the driver is somewhat uncertain and contradictory, but he stated that as soon as he "got clear of the building" on his left, he again made an observation down Bagley Avenue, and saw the approaching streetcar 160 feet away. At that time, as was developed under cross-examination, the driver was level, or even, with the north curb of Bagley Avenue, and the front end of his automobile was about 5 feet south of the curb line — and 6 feet from the nearest rail of the track on which the street car was coming uphill. As he made this latter observation, the driver was shifting into second gear and was driving at a speed of between 2 to 3 miles an hour. At this time, he could have stopped his automobile in 4 feet, which would be short of the nearest rail of the track. He testified that he could not determine the speed of the streetcar, looking at it from where he was in the intersection, but that it was "a sufficient distance away so that I thought I could cross."

The night was cold and misty. It had been raining. The asphalt surface of Fourteenth Street was wet. From the point where the driver first saw the streetcar, his automobile would have to travel approximately 26 feet to clear the track on which the car was approaching — 6 feet to the nearest rail, 5 feet to the far rail, and 15 feet to take care of the length of the automobile and the overhang of the streetcar beyond the far rail. The driver testified that when he first saw the streetcar, although it was impossible to determine its speed, there was nothing to indicate that it was approaching at a "fast speed." He accelerated his engine, and as he was passing over the tracks, looked to the left and saw the streetcar 30 feet away from him. As he testified, "It had approached at a much more rapid speed than I had anticipated. * * * I could have proceeded over — a streetcar traveling a normal rate of speed — over that west-bound track." The automobile was traveling between 7 and 10 miles per hour as it was passing over the far rail of the track and, at that instant, was struck by the streetcar, at the left rear wheel.

Although the verdict was directed at the conclusion of appellant's proofs, her witnesses were disputed by the testimony of the motorman of the streetcar, which was introduced under a Michigan statute providing that a defendant, or his agents, may be called by the plaintiff, who is bound by such testimony only when it is undisputed. The motorman testified that he was proceeding on Bagley Avenue at a speed of 20 miles per hour; that the electric power in the streetcar had been turned off a block away, and that the car was coasting uphill; that it was not until he had entered the intersection of Fourteenth Street and Bagley Avenue that he first saw the automobile 25 feet north of Bagley, coming at a rate of speed in excess of 25 miles per hour; that the automobile did not stop or slacken at the stop street, but came out into the intersection at the same rate of speed; that he first applied the Westinghouse air brakes when he was in the middle of the intersection; that the collision occurred immediately, and before the brakes took effect; and that the streetcar continued on 75 feet beyond the point of impact before it was brought to a stop.

In reviewing a judgment on a directed verdict, the evidence is to be considered from the standpoint most favorable to the party against whom the verdict was directed. The one question here to be determined, is whether the driver of the automobile was guilty of contributory negligence as a matter of law. On this issue, in recapitulation, we have before us the following evidence of appellant (which is to be accepted in passing upon the correctness of directing the verdict), and that part of the testimony of the motorman, which can be viewed most favorably to appellant: Appellant's driver stopped 12 feet from Bagley Avenue and, thereafter, slowly entered the intersection. At the first place where he could make a sufficient observation down the street to the left, he looked in that direction and saw the approaching streetcar 160 feet away. The automobile was then traveling 2 to 3 miles an hour. It was a misty night. From his location at the intersection, the driver could not form an opinion of the speed of the streetcar, but there was nothing about it that led him to believe that it was traveling at high speed. At this time, the front end of his automobile was 6 feet from the nearest rail of the track on which the streetcar was approaching. He could have stopped in 4 feet. The automobile would have to traverse a distance of 26 feet to clear the track of the oncoming car. The driver changed his gears from low speed and, proceeding up the incline, which continued beyond the tracks, lost some speed in shifting gears — and also lost some traction because of the wet surface of the asphalt street. From the time that he made his observation when the front end of his automobile was 6 feet from the nearest rail, the driver did not look again to the left until he was passing over the near rail. His speed had increased from 2 or 3 miles an hour to 7 or 10 miles an hour. As he was passing over the near rail, he saw the streetcar approximately 30 feet away; and the left rear end of his automobile was struck just as it was proceeding over the farther rail. The streetcar motorman did nothing to diminish his speed, in the distance of 160 feet. He did not see the automobile until he entered the intersection, although he could have seen it as far as the driver of the automobile saw the streetcar — if it had been there — and, under appellant's evidence, we must assume it was; and the motorman did not apply his brakes until he was in the middle of the intersection, when it was too late for them to take effect before the collision.

To support the trial court's determination that appellant's driver was guilty of contributory negligence as a matter of law, appellee cites numerous cases relating to collisions between railroad trains or electric interurbans and automobiles. The rule applicable in such instances is, in general, not the same as between streetcars and automobiles at street intersections, and the facts in the cited cases, differentiate them from the case under consideration, with regard to elements of speed, distance, and nature of observations made by the injured parties. However, appellee also relies on certain other recent Michigan decisions, involving intersection collisions between automobiles, chief among which are Ayers v. Andary, 301 Mich. 418, 3 N.W.2d 328; Francis v. Rumsey, 303 Mich. 526, 6 N.W.2d 766, and Afman v. Kraker, 305 Mich. 504, 9 N.W.2d 692.

In the Ayers case, plaintiff's...