Morrison v. Grass, s. 58

• Decision Date: 05 March 1946
• Docket Number: 59,June term, 1945.,Nos. 58,s. 58
• Citation: 314 Mich. 87,22 N.W.2d 82
• Parties: MORRISON v. GRASS (two cases).
• Court: Michigan Supreme Court

314 Mich. 87

22 N.W.2d 82

MORRISON

v.GRASS (two cases).

Nos. 58, 59, June term, 1945.

Supreme Court of Michigan.

March 5, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; George B. Murphy, judge.

Consolidated actions by Carre W. Morrison and her husband, Colin D. Morrison, respectively, against Sadie S. Grass, for injuries sustained by plaintiff wife when struck by defendant's automobile at a street intersection and for plaintiff husband's resulting medical expenses and loss of wife's services. Judgments for plaintiffs, and defendant appeals.

Affirmed.

BUTZEL, C. J., and BOYLES and NORTH, JJ., dissenting.

Before the Entire Bench.

G. Leslie Field, of Detroit, for plaintiffs and appellees.

Howard D. Brown, of Detroit (Paul R. Erickson, of Detroit, of counsel), for defendant and appellant.

SHARPE, Justice.

I concur in the result reached by Mr. Justice REID. There was evidence that defendant violated the city ordinance. It was for the jury to determine whether or not defendant was guilty of negligence in her operation of the automobile.

Whether plaintiff Carre W. Morrison was guilty of contributory negligence as a matter of law presents a more serious question. As Mrs. Morrison started to cross the southerly portion of the street she saw defendant's car about 200 feet away. In order to be sure of perfect safety, Mrs. Morrison would have to travel a distance of 30 feet 9 inches, but inasmuch as defendant's car was approaching in the middle of the southerly portion of the street, it was only necessary for Mrs. Morrison to walk a distance of approximately 20 feet in order to insure her safety.

In Moore v. Noorthoek, 280 Mich. 431, 273 N.W. 758, 760, we said:

‘In the case at bar the evidence shows that defendants' car was 164 feet away when plaintiff started to cross the west half of the intersection, a distance of 21 feet. She had a right to assume that defendant would drive the car in compliance with the ciry ordinance which gave plaintiff the right of way at such crossings, and whether plaintiff exercised reasonable care under the circumstances was a question of fact for the jury.'

In my opinion the contributory negligence of plaintiff Carre W. Morrison was a question of fact.

Notwithstanding my conclusion that the judgment in the instant case should be affirmed; nonetheless I concur with Mr. Justice Butzel in his statement of the law governing the right of recovery in so-called dependent or companion cases.

The verdict of the jury should not be disturbed. Judgment affirmed, with costs to plaintiff.

BUSHNELL, REID, and STARR, JJ., concurred with SHARPE, J.

The late Justice WIEST took no part in this decision.

REID, Justice.

Plaintiff Carre W. Morrison sues to recover damages for injuries she received when she was struck by defendant's automobile as she was walking across Grand River avenue in the city of Detroit at the intersection of Prevost avenue. Plaintiff Colin D. Morrison, husband of Carre W. Morrison, sues for damages sustained by him by reason of the injuries to his wife. Verdict in each case was in favor of plaintiff. There were special questions submitted to and answered by the jury. Defendant appeals. The two cases were consolidated for trial and again on appeal.

Grand River avenue is a main traveled thoroughfare running from downtown Detroit to Lansing and Grand Rapids. At the intersection in question it runs in a northwesterly-southeasterly direction, 76 feet wide between curbs. Double street car tracks take about 14 1/2 feet of the center, and the pavement between each curb and the nearest rail is 30 feet, 9 inches wide. In the testimony the northwesterly direction of Grand River is called west and the southeasterly direction conversely is called east.

On April 8, 1943, plaintiff Carre W. Morrison, hereinafter referred to as plaintiff, left her employment in a downtown Detroit bank and boarded a street car on her way to her home, which was near Grand River and Prevost avenues. She left the car a few blocks before reaching Prevost and did some shopping. She then walked to the northwest corner of Grand River and Prevost avenues, where she intended to cross Grand River avenue on foot from the northwest to the southwest corner of the intersection. She selected that crossing because it is a better place to cross than any other street along there and the street cars stop there. It was then about 5 p.m., still daylight; the pavement was dry and weather normal. Plaintiff carried her purse, which was not large, in her right hand, and in her left hand below the level of her shoulder she carried two light packages.

When plaintiff got to the northwest corner of the intersection, she waited for westbound Grand River traffic to clear. Having noted that the traffic was clear going westerly, she walked south to the street car tracks. When she got to the farthest track to the south, she saw the car driven by defendant, midway between the street car track and the curb, coming toward her in the block to the west between Prevost and Rutherford streets. The defendant's car was about one-third into the block, in other words, about 200 feet from plaintiff, when plaintiff was at the southerly track, at which point plaintiff hesitated, took in the situation, did not stop, and had plenty of time to cross, according to her judgment. The defendant at no time slackened the speed of her car and did not see plaintiff leave the street car track.

Defendant testified that just before the accident she was looking around to her right for a period of time described by her as a breath or two. After the breath or two, defendant looked ahead and for the first time saw plaintiff, who was then directly in front of her car about 30 feet away. Defendant testified she became frozen stiff with excitement, did not swerve her car to the right or left, did not slacken her speed nor apply her brakes, and did not blow her horn. Defendant's car struck plaintiff at a point about 10 feet from the southerly curb. The right outer portion of the right front fender of defendant's car struck plaintiff on the rear portion of the right hip.

The ordinance of the city of Detroit received in evidence is as follows:

‘When traffic control signals are not in place or not in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping, if need be, to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.'

The question as to the rate of speed of the defendant's car was not submitted to the jury because plaintiff's counsel admitted that the defendant's car did not at any time travel at a speed greater than 25 miles per hour. Questions 2, 3 and 4 are as follows:

(2) Did the defendant's automobile travel at the same speed from the time it was first seen by the plaintiff until the collision occurred? Answer of the jury: Yes.

(3) Did the defendant's automobile travel in the same lane of traffic on Grand River avenue from the time it was first observed by the plaintiff until the collision occurred? Answer of the jury: Yes.

(4) Did the impact occur in the second traffic lane from the south curb of Grand River avenue? Answer of the jury: Yes.

While walking from the south rail to the point of collision, plaintiff walked rapidly as people do when they know traffic is coming; she continued to observe the approach of the car and considered she was safe. The distance from her place at the south rail, where she says she hesitated but did not stop, to the southerly edge of the second traffic lane, in which lane the jury's answer to question 4 says the accident occurred, was approximately 19 feet. When she was at the southerly street car rail, defendant's car was estimated by her to be two-thirds of a block away, about 200 feet. The jury could have considered that her walk was at the rate of three miles per hour and that the automobile was approaching her 8 1/3 times as fast as she was walking, and therefore, while she was walking 19 feet the car would travel about 158 feet. This would leave her about 42 feet clearance. We cannot say therefore as a matter of law that she was contributorily negligent in concluding that she could safely walk to a point where she would be beyond the path of the oncoming automobile of defendant, and in proceeding so to do.

After plaintiff had arrived at a point where she was within 4 or 5 feet of entirely clearing the path of the oncoming car, it would evidently be necessary for her to look over her right shoulder to continue her observation of the car. Her vision past her shoulder was clear and her parcels did not interfere with her line of vision. At the last time that she looked over her shoulder, very shortly before the collision, she concluded that she was already safe. Evidently it was then necessary for her to further note traffic conditions ahead of her, besides noting the possibility of the approach of other cars in the farthest lane.

While it is true that the defendant claimed in an early part of her testimony that she saw plaintiff ‘dive’ from a place of safety at the street car tracks into a position in front of her car, this testimony is contradicted by testimony given by witness Silverman, whose car followed defendant's car, that she told him she was looking in her rear view mirror, in which case she could not be noting the actions of plaintiff. Defendant's testimony is also contradicted by her own later testimony that just before the accident she heard a sound like a police whistle, glanced to the right for the space of a breath or two, and that when she again looked ahead there was the plaintiff, whom she then saw...