Ortisi v. Oderfer, 4

• Citation: 341 Mich. 254,67 N.W.2d 153
• Decision Date: 29 November 1954
• Docket Number: No. 4,4
• Parties: Dominic ORTISI, Plaintiff and Appellee, v. John Herman ODERFER, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 153

67 N.W.2d 153

341 Mich. 254

Dominic ORTISI, Plaintiff and Appellee, v. John Herman ODERFER, Defendant and Appellant.

No. 4.

Supreme Court of Michigan.

Nov. 29, 1954.

Ward, Plunkett & Cooney, Detroit, John D. Peacock, Detroit, of counsel, for appellant.

Joseph W. McDonnell, Detroit, for appellee.

Before the Entire Bench.

BUTZEL, Chief Justice.

Plaintiff, Dominic Ortisi, was struck by defendant's automobile while crossing Gratiot Avenue, at the intersection of Gratiot and McDougall Avenues in the city of Detroit. Immediately prior thereto the plaintiff had crossed McDougall Avenue from west to east and then waited for the green light on the northeast corner of Gratiot and McDougall before crossing Gratiot. He waited until the light changed to green and then proceeded south across Gratiot. Plaintiff, the sole witness, in an action brought in the common pleas court for the city of Detroit, testified:

'Q. Now you say you waited for the light to change? A. I did.

'Q. And by that do you mean that Gratiot automobiles were stopped for a red light? A. Yes.

'Q. And when the light did change, what did you do? A. When the light changed I started to walk.

'Q. And you started to walk towards this corner, the southeast corner? A. The southeast, yes.

'Q. As you walked across Gratiot Avenue were the automobiles on the street there? A. None of them.

'Q. Was there no traffic? A. No car.

'Q. You mean the street was clear of all automobiles? A. No car. When I started to walk the light turned green and cars stopped on both sides.

'Q. Now did you get to the southeast corner of Gratiot and McDougall? A. No, I didn't. A car hit me before I get there.

'Q. How far from the southeast curb of Gratiot were you when you were struck? A. Nine or ten feet.

'Q. Did you see the car before it struck you? A. I only see the shade of the car; that is all I see.'

At the conclusion of his testimony the plaintiff rested his case except for medical testimony. The defense thereupon moved for a directed verdict of no cause of action on the ground that the plaintiff had failed to show that he was free from contributory negligence, saying:

'I submit, your Honor, the plaintiff in this case has never stated as to making any observation whatsoever, except when the light turned green he started to cross Gratiot. There was no testimony that as to making any observation of traffic at any time after he started. There was no testimony that he continued his observation while crossing the street or highway. I submit that unless that is done, that would make him guilty of contributory negligence, as a matter of law.'

The trial judge granted the motion for a directed verdict. On appeal the circuit court, after reviewing the testimony which did not establish that the plaintiff had made continual observations, but which only established that the plaintiff was crossing on the green light, decided that the plaintiff had made a prima facie case of freedom from contributory negligence and as this evidence was uncontradicted, the common pleas court should have not rendered a verdict for the defendant as a matter of law. The decision of the trial court was reversed and the case remanded with instructions to proceed to a new trial. The defendant has appealed on the claim that the plaintiff was guilty of contributory negligence as a matter of law.

An examination of the multitude of pedestrian cases involving contributory negligence as a matter of law discloses the various duties required of a pedestrian who undertakes to cross the street. The case most frequently cited is malone v. Vining, 313 Mich. 315, 21 N.W.2d 144, 146, in which it was stated:

'Under present-day traffic conditions a pedestrian, before crossing a street or highway, must (1) make proper observation as to approaching traffic, (2) observe approaching traffic and form a judgment as to its distance away and its speed, (3) continue his observations while crossing the street or highway, and (4) exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances.'

It is this third duty with which we are concerned in this case. This particular duty has been imposed in cases where a traffic light exists at the crossing involved as well as in cases where there is no light. Thus in Long v. Garneau, 319 Mich. 291, 29 N.W.2d 696, where the plaintiff did not look to the right or left while she was in the street and did not observe that the light had changed, and as a consequence walked into the side of a car, the court said:

'An ordinance giving the pedestrian the right of way is not a 'guarantee' that a pedestrian may cross a street intersection, even with the green light, without looking to the right or to the left, walk into the side of a passing automobile plainly to be seen if the pedestrian had looked, and then avoid the conclusion that he is guilty of contributory negligence.' 319 Mich. at page 301, 29 N.W.2d at page 701.

'Maintaining one's right of way in the face of obvious danger, even though allowed by statute or ordinance to that effect, may be temporarily satisfying, but may ultimately result in disaster.' 319 Mich. at page 309, 29 N.W.2d at page 704.

It is interesting to note that in this case the court upheld the trial court which found no cause of action on an examination of all of the facts and testimony in the case.

In Steele v. Hamilton, 218 Mich. 522, 188 N.W. 345, where the plaintiff, not observing the light which changed while she was crossing, walked into the side of a car, the court said:

'There is some conflict in the testimony as to whether the semaphore was turned against the east and west traffic; but, if we concede that it was, that fact did not wholly relieve plaintiff of exercising ordinary care and using her eyes in the ordinary was to protect herself from collisions.'

To the same effect see Beaulieu v. City of Detroit, 293 Mich. 364, 292 N.W. 332; Sloan v. Ambrose, 300 Mich. 188, 1 N.W.2d 505.

While on their face these case indicate that even though one has the green light in his favor, he still has a continual duty to observe while crossing the street, two things should be noted. In all of the above cases the plaintiff walked into the side of the defendant's vehicle and in all of the cases involving lights, plaintiff failed to observe that the light had changed. In such cases where the danger is obvious and apparent being directly in the path of the pedestrian, and where the pedestrian is no longer entitled to the benefit of the light because it has changed, the rule should be that under such conditions the plaintiff may be guilty of contributory negligence as a matter of law for failure to observe.

In addition this court has intimated that the continual duty to observe applies to cases where the light is in the plaintiff's favor at all times. In Boyd v. Maruski, 321 Mich. 71, 32 N.W.2d 53, 54, the plaintiff, though apparently watching it, failed to observe when or if the light had changed and also failed to observe traffic while crossing. The court found her guilty of contributory negligence as a matter of law and added:

'none-the-less even with the traffic light in her favor, she was bound to use such care as an ordinarily careful and prudent person would use in looking for approaching traffic.'

In Ashley v. Kilborn, 333 Mich. 283, 52 N.W.2d 528, the plaintiff failed to observe either the traffic light or traffic conditions after stepping into the street. The court held him guilty of contributory negligence as a matter of law because of his failure to observe, citing Boyd v. Maruski, supra, with approval.

If the effect of the above decisions is to impose the same duties upon pedestrians crossing with the protection of a green light as are imposed upon those crossing without its protection, then we feel that the rationale of those decisions requires reconsideration in the light of modern conditions. If the above cases imply that the light affords no protection at all, the duties of a pedestrian are the same with or without it. This cannot, and should not, be the case. The light must afford some protection. The question is--how much?

In Travis v. Eisenlord, 256 Mich. 264. 239 N.W. 304, the plaintiffs were in a car crossing an intersection with the light in their favor. They had seen the defendant's car before they reached the intersection, but failed to continue their observations while crossing the intersection. The defendant, ignoring the signal, collided with the plaintiffs' car. The Supreme Court said:

'The court was wrong in holding that the plaintiffs were guilty of contributory negligence as a matter of law. If he were correct in so holding, it would mean that the driver of the plaintiffs' car must at his peril assume that the defendant would disobey the law and rush the red light. The contrary is true. He had a right to assume that the defendant understood the red signal and that he would not undertake to make the crossing until it had changed to green. If he had looked as the court says he should have done, it is true that he would have seen the defendant approaching, but he would have had a right to rest on the assumption that defendant would stop before the red light and wait until it had changed. It was the duty of plaintiffs' driver to look for the green light and to see that the intersection was clear before attempting to cross, but he was not required to look to the right for the defendant, because he had good reason to believe that he was protected from danger in that direction by the red light.'

This case was followed in Oppenheimer v. Simpson, 263 Mich. 156, 248 N.W. 580 (a case involving two cars), and in Willis v. Tucker, 261 Mich. 83, 245 N.W. 577 (a case involving a pedestrian and a car).

In Morse v. Bishop, 329 Mich. 488, 45 N.W.2d 367, the plaintiff observed the defendant's automobile running the red light before he started to cross the street. He...